Public Flashcards

Question

Whichone of the following statements is incorrect? The legality principle acts as a statutory presumption that seeks to safeguard fundamental constitutional rights and freedoms. With the exception of prerogative powers, governmental bodies do not hold powers in their own right; they are able to exercise powers only because Parliament has directly bestowed them. The ‘legality principle’ means that courts are bound to uphold fundamental rights in all conceivable situations, as the judiciary perceive this to be their central constitutional role. In its purest form the rule of law dictates that governmental bodies must act within the limits of the powers that they have been given. The legality of governmental actions is challengeable through the courts using the process of judicial review.

Answer 1

The ‘legality principle’ means that courts are bound to uphold fundamental rights in all conceivable situations, as the judiciary perceive this to be their central constitutional role. Correct. This is not entirely accurate as the courts will not feel able to protect such rights in a situation where Parliament’s express intention has been made crystal clear in legislation. In the Simms case, Lord Hoffmann said that Parliament could legislate contrary to human rights (thereby exercising its sovereignty) but only if it did so using the clearest possible language.

Answer 2

There is a potential for friction to occur between the principles of parliamentary sovereignty and the rule of law, notably the more modern, substantive variety. Correct. This can occur when Parliament passes a statute which may undercut some of the features of the rule of law – for instance a discriminatory piece of legislation or one that restricts rights and freedoms.

Answer 3

The devolution legislation is legally irreversible. Correct Correct. This is not an accurate picture as key provisions in all the devolution legislation – such as s. 28(7) of the Scotland Act – specifically allow Westminster to be able to legislate for the relevant devolved country.

Answer 4

The Human Rights Act 1998 is no more securely in place than any other piece of legislation on the statute books. Correct. This statement is not entirely accurate. The Act is far from being entrenched, as it is clearly subject to possible express repeal. However, it is arguably a little more securely in place than the majority of other pieces of legislation, as it is seen now as a “constitutional statute” and cannot therefore be impliedly repealed by inconsistent new legislation.

Answer 5

In the case of R v A (Complainant’s Sexual History) Lord Steyn interpreted the relevant provision in such a way as to make it compatible with article 6 of the European Convention. Correct. Lord Steyn used the new s. 3 powers under the HRA in exactly this way.

Answer 6

Prerogative power is described as residual in nature, simply because those areas of state power that used to be governed by the prerogative have fallen into disuse as they are historically no longer relevant. Correct. This is not accurate as a general statement though it may be around the margins. Those areas of power that are no longer part of the prerogative have instead mostly come to be regulated by newer statutory powers.

Answer 7

The granting and revocation of passports was formerly a prerogative power but is now governed by statute. Correct. The granting and revocation of passports continues to be a Ministerial prerogative power.

Answer 8

The Crown is not bound by the terms of legislation unless the statutory provision in question expressly states that it should be, or it is deemed to be by “necessary implication”. Correct. This remains the case – the matter is dealt with by the courts by applying a statutory presumption against the Crown being bound.

Answer 9

The only effective means of controlling prerogative power is through general acceptance of a firm constitutional convention determining how the power in question should be used. Correct Correct. This statement does not reflect the relative importance of the courts in subjecting the government’s use of prerogative power to scrutiny through the judicial review process. Arguably, the political control mechanisms through constitutional conventions are more intangible and less clearly defined, as well as not being directly enforceable.

Answer 10

The courts regard prerogative power and statutory power as equally enforceable sources of law, unless they both operate at the same time in relation to the same subject matter. Correct. This is the consequence of the De Keyser principle that determines that, in this situation where a new statutory power has adopted the same ground as a historic prerogative power, the statutory power should prevail.

Answer 11

The case of Miller v S o S for Exiting the EU can be seen to fit broadly in a line from De Keyser through to Fire Brigades Union, as it confirmed that significant changes to statutory rights and, on a higher plane, to the UK’s constitutional arrangements could not be brought about solely by use of prerogative power. Correct. This represents the general consensus of the majority of the Supreme Court justices.

Answer 12

The issue at hand in the GCHQ case was whether the Minister for the Civil Service had the powers she claimed to be able to regulate the working conditions of the civil servants. Correct. This is not an accurate picture of the case. There was no doubt that the Minister (also the Prime Minister) had the necessary powers – the key point of contention was how she had used them.

Answer 13

Control of the prerogative — GCHQ

Answer 14

Even though the court found against the Prime Minister on the main issue of principle in the case, she was nevertheless still able to defend the claim successfully. Correct. This is an accurate summary of the “result” of the case. this was because the law lords accepted the PM's argument that there had been a justifiable public interest factor in not consulting the unions before the ban was imposed.

Answer 15

The challenger in R v SoS for Foreign Affairs ex p Everett lost his case because the court respected the authority of Lord Roskill’s finding in GCHQ that matters relating to foreign affairs and diplomacy were non-justiciable. Correct. This statement is inaccurate in two respects. Firstly, it has now been widely accepted that Lord Roskill’s list was part of an obiter discussion and so does not represent an authority that has to be followed. More directly, however, the court in Everett did not conclude that the issue – relating to the refusal to renew his passport – was non-justiciable.

Answer 16

The challengers won the case of R v SoS for Foreign Affairs ex p Abbasi, because they were able to show that the UK Foreign Office had conducted its negotiations with the United States in an unlawful and negligent way. Correct. This is not an accurate summary of the nature or result of the case.

Answer 17

Control of the prerogative — post GCHQ

Answer 18

It is unlikely that the Council’s decision is amenable to judicial review. On the facts, the rules affecting the client come from an agreement between clubs, their members and the Council, giving rise to private rights and remedies. This question requires knowledge about the type of decisions that can be challenged in judicial review, known as their amenability to judicial review. These are not simply decisions taken by public bodies. They can also include decisions taken by ostensibly private organisations if the decision involves matters that are of a sufficiently public nature. However, in this situation, involving a sporting association, it is unlikely that the decision taken will be seen to involve a public function. Also, it is clear that the clubs and members have agreed to abide by the organisation’s own rules. It is therefore unlikely that this matter will be challengeable in public law through JR.

Answer 19

The District Council’s decision suggests that it failed to take into account a mandatory consideration when assessing your client’s application and so acted unlawfully. This question requires knowledge of the different types of challenge that can be made under the judicial review ground of illegality. One of the key sub-categories involves the duty on bodies making public law decisions to take into account relevant considerations, and conversely to ignore irrelevant ones. This local authority does not appear to have followed a duty in the statute, which is phrased in mandatory terms, and so has acted unlawfully.

Answer 20

Your client has a potentially strong claim based upon indirect bias. This question requires knowledge of how public law decisions can be challenged on the ground of bias and of the two different forms of bias. There is a clear connection here between the two individuals involved. The decision-maker does not have a direct, financial interest in the matter (or rather there is no evidence of that which has been disclosed) so this cannot be a matter of direct bias. However, the closeness of their connection gives rise, on an objective basis, of there being a real possibility of bias which is the test for indirect bias. It does not matter that the individual was one of a three-person panel – that is enough to give rise to this ‘real possibility’.

Answer 21

Freedom of expression can be interfered with by the licensing authority but only if the restriction on it is prescribed by law and fulfils a legitimate aim in a proportionate way. This question requires knowledge of the nature of article 10 ECHR and the circumstances is which it can be justifiable for the state or a public authority to interfere with it. It is important firstly to appreciate that article 10 is a qualified right and not an absolute one. And also that expression covers a very wide range of expression, not just political. It is not possible on the facts to determine if there has been a definitive breach of article 10 so the question anticipates knowledge of the three hurdles which it is necessary for the state to overcome to justify the restriction, in this case the refusal of the certificate. These are that the restriction must be ‘prescribed by law’ and applied in a proportionate way in pursuit of a legitimate aim. The list of relevant legitimate aims is contained in article 10(2) and are not confined to national security or safety.

Answer 22

Under the convention of collective ministerial responsibility, the SoS is able to argue as strongly as he wishes against the cuts, as long as he does not later disclose the arguments in Cabinet externally. However, if he loses the debate, he will be obliged either to accept the cuts and support them as a member of the government or to resign his ministerial role. This question requires an understanding of the nature and extent of the convention on collective (as opposed to individual) ministerial responsibility. The key to it is to appreciate, firstly, that Cabinet discussions on the issue are intended to allow ministers to exchange their views and opinions openly but, equally, to maintain confidentiality of the matters discussed. Secondly, once a communal decision has been made, it is very important – in order to achieve confidence in government – for the ministers to maintain a united front, failing which there is a moral obligation on any openly dissenting minister to resign.

Answer 23

It is unlikely that she will succeed in her claim as a court will probably not consider her to have a reasonable expectation of privacy, as she had acted openly in this way in a public place. Even if it were found that she did have such an expectation, it is likely that the court would find that there was a public interest factor in the story that the newspaper could point to, in order to justify publication. This question relates to the ‘indirect horizontal effect’ that has been brought about the Human Rights Act, notably the status of the courts as public authorities. In principle a claim would be possible in this scenario, but it is unlikely to succeed for two reasons. Firstly, an individual will only have article 8 privacy rights engaged, if they are seen to have a ‘reasonable expectation of privacy’ and that is unlikely in this public situation. Secondly, even if a court deemed there was a reasonable expectation of privacy, it is likely to apply the balance between the individual’s privacy rights and the tabloid’s article 10 rights in favour of the latter, as there appears to have been a public interest in the story.

Answer 24

It is for the prosecution to prove that the defendant is guilty. If the jury is satisfied beyond reasonable doubt that the defendant committed the offence, it should return a guilty verdict. This question requires a knowledge of both the burden of proof operating in the criminal law and the degree of proof required. It is vital to appreciate that the burden is on the prosecution and the defendant does not have disprove his alleged guilt. The standard of proof required is beyond reasonable doubt and not ‘on balance’ or there being ‘even the slightest possibility”.

Answer 25

Where it considers that the earlier Court of Appeal decision had been made per incuriam by failing to pay due regard to a relevant statutory or common law authority. This question requires knowledge of the system of precedent and, more specifically, of the flexibility that has been brought in to allow some departure from historic precedents. In relation to the Court of Appeal the current court is able in defined circumstances to depart from a decision made by an earlier incarnation of the court. This is not allowed where the modern court feels that the law should be modernised in a general sense but instead for more technical reasons. Here, an acceptable reason for doing so would be if the earlier Court of Appeal had acted per incuriam by not paying due regard to a statutory or case law authority that was relevant at the time.

Answer 26

A statutory instrument is a form of secondary legislation and it is possible to challenge its lawfulness in the Administrative Court. If the challenge is successful, the Administrative Court is able to quash the statutory instrument. This question requires knowledge that primary and secondary legislation have different statutes. A statutory instrument (SI) is a form of secondary or delegated legislation, and it is capable of challenge in court, unlike primary legislation which cannot be directly challenged, given the central importance of parliamentary sovereignty. It is also important to note that, if the Administrative Court does not feel that the SI has been made in accordance with the original ‘parent’ Act, the remedy would be for the court to quash the SI.

Answer 27

The Justice’s obiter statement is likely to have significant persuasive effect in relation to the current case, especially if it related to a closely connected legal issue, but it will not be binding. This question relates to the significance and status of obiter comments in relation to the development of the common law. It is very important here to appreciate that obiter comments cannot be directly binding on (inferior) courts, adjudicating on the same area. However, they can prove influential in shaping the decisions of future courts, especially if they relate closely to the subject matter at hand, and so they can have a persuasive effect.

Answer 28

The courts will be prepared to exercise oversight and control over the executive in relation to this matter and may find the Home Secretary’s office to have been in contempt of court if the order is ignored. This question relates to the general area of separation of powers in the UK constitution and in particular the relationship between the executive and the judiciary. In order to ensure that the ‘rule of law’ is followed, it is important that the courts scrutinise the actions of the executive to ensure that it is acting in accordance with the law. In some situations, where the government is given discretion to act, the courts will defer to the expertise of the executive. However, that is not the issue here where the court has made a clear order which the Home Office is intent on ignoring. The court cannot override the Home Office’s decision and substitute its finding for the Home Office’s but it can find the Home Office in contempt of court.

Answer 29

It is unlikely that the court will quash the decision reached by the agency, as the linguistic presumption ejusdem generis points towards an interpretation of qualifying institutions as those researching graduate and postgraduate qualifications and not qualifications taken at secondary school level. This question requires a knowledge of the maxims that apply to statutory presumptions that can be made by the courts when interpreting statutes with particular features. In particular, this provision contains a form of open list of ‘similar’ educational qualifications, and so it is most likely that the maxim “ejusdem generis” will be applied. As the named qualifications in the list all involve tertiary education, it seems unlikely that Parliament would have intended the client’s research – involving secondary education – to be granted funding.

Answer 30

It will be legally possible for the UK government to carry out this change. This is because the Sewel Convention is not enforceable. Therefore, Westminster can legislate in this way even without the political approval of the Scottish Parliament. This question relates to the relationship between the UK Parliament and government in Westminster and the devolved administrations, in this instance, Scotland. It is important to appreciate that the Sewel Convention would apply in this instance as the UK government is seeking to introduce legislation that cuts across a devolved area. It should therefore initially ask the Scottish Parliament to pass a legislative consent motion. However, it is equally important to know that, because this is just a convention and therefore not legally enforceable, Westminster can effectively override this and introduce the Bill in the manner proposed.

Answer 31

A body of rules and principles designed to remedy the rigidity of the common law. Correct. This is effectively the original purpose and function of this branch of law. The other answers do not describe the essence or purpose of the law on equity as effectively.

Answer 32

In a current High Court case, the judge finds that the material facts, though similar in nature to that of an old Court of Appeal case which established a precedent on a particular point of law, are sufficiently different to justify not being bound by that precedent. Correct. Note that the judge is the person responsible for assessing the extent and scope of the old precedent, as it should currently apply. This is very much a matter of judicial skill and the ability to vary the level of abstraction gives the judge a degree of freedom to depart from an old precedent if s/he considers it appropriate. The other answers do not show a correct or as clear an understanding of the relevant terminology used in the analysis of case law as this one does.

Answer 33

The driver of the car will be prosecuted for the relevant offence by the Crown Prosecution Service and, if found beyond reasonable doubt to be guilty, he will be sentenced by the court. He will also face a civil law claim in relation to his negligence and, if found on the balance of probabilities to be responsible, he will be liable in damages. Correct. Note the differing standards of proof in criminal and civil law and the other terminology associated with both. The other answers do not adequately describe the civil and criminal law processes and consistently refer to the correct terminology associated with both.

Answer 34

It is likely that the case will start in the Queen’s Bench Division of the High Court. Any procedural hearings will be heard by a Master and then the first instance trial will be heard by a High Court judge, with any appeal going to the Civil Division of the Court of Appeal. Correct Correct. It is most probable that the claimants will seek to issue proceedings in the High Court, given the potential value of the claim. The other answers do not accurately or as effectively describe the likely route of the litigation.

Answer 35

A very complex clinical negligence case has been heard by the High Court. The defendant health authority, which lost the case, and which faces liability for more than £5 million in damages, wishes to dispute the legal basis on which the judgment was reached, as this involved a novel point of law and potentially has implications for numerous other health authorities. The health authority therefore applies for permission to appeal directly to the Supreme Court. Correct. This is the correct leapfrog process, as it bypasses the Court of Appeal. It also involves an issue of law that is a matter of public importance. The other answers do not correctly or adequately describe the process.

Answer 36

In order to assist in a literal interpretation of a (fictitious) statute, the judge applies the presumption ‘expressio unius est exclusio alterius’ when interpreting the statutory phrase: ‘the imposition of the tax on income, share dividends and bond yields.’ Correct. This effectively deals with the situation where there is a ‘closed list’ of descriptive items, as in this statute – the presumption is that the tax applies only to those matters listed. Additionally, this assists a literal approach to interpretation as the court is seeking to achieve a proper construction of the words in the statute. The other answers do not correctly or adequately describe the correct application of the various linguistic presumptions that aid the process of statutory interpretation.

Answer 37

Judges will look at the strict meaning of the words contained in a statute, as well as the purpose or objective of the Act in question. If there is a conflict between the two, the judges will interpret the words in the context of and in accordance with the wider purpose of the Act. Correct. Judges do not automatically use a purposive approach. However, particularly in the modern day, they naturally tend to assess the overall context within which the Act came about so that, if a literal reading of the words in the statute does not produce a plausible interpretation, they will be informed by this wider context. The other answers did not fully or clearly describe the context in which, and the objective for which, the courts use a purposive approach to statutory interpretation. incorrect Judges will consider the overall design and configuration of the Act in question. However, if they consider that this creates a situation where a literal interpretation of the legislation is incoherent or absurd, they will be entitled to apply a different interpretation to the words so that implementation of the Act becomes more workable and effective. Incorrect. This approach is closer to the old ‘golden rule’. Revisit your materials on statutory interpretation and your understanding of the different ‘rules’ on or approaches to interpretation that can be taken by the courts. Revisit your materials on statutory interpretation and your understanding of the different ‘rules’ on or approaches to interpretation that can be taken by the courts.

Answer 38

The committee stage of a bill gives MPs appointed to the relevant legislative committee the chance to scrutinise the detail of the bill and to propose necessary amendments. Correct. Note that MPs are selected on the basis of party strength in the Commons to scrutinise an individual bill. Also note that this type of committee used to be called a ‘standing’ committee and is sometimes still referred to as such. The other answers do not correctly describe in all respects the legislative process operating within Parliament.

Answer 39

Secondary legislation is not made by Parliament itself but usually by government departments under powers given to it by Parliament in primary legislation. It is subject to varying degrees of initial political scrutiny but can be judicially reviewed by the courts to ensure that it has been created within the powers originally approved by Parliament. Correct. Note that the original powers are given by Parliament in a so-called Parent Act. The other answers do not correctly or adequately describe key features of secondary legislation including the degree to which it is scrutinised before implementation.

Answer 40

There will be a Coroner’s Court inquest, as the death occurred in public and was not due to natural causes, and there is also a possibility of a statutory inquiry taking place. The man’s widow may also need to challenge the DWP’s decision to deny her benefit assistance through the Social Entitlement Chamber of the First Tier Tribunal. Correct Correct. A statutory inquiry could be ordered in this situation but is only likely to happen if there are exceptional features to this incident or there has been a spate of such incidents, suggesting systemic problems in police handling of such matters. The other answers do not demonstrate as clear a picture of the likely involvement of the key statutory judicial bodies and tribunals.

Answer 41

The UK’s constitutional ‘rules’ comprise a mixture of legal rules, which come from constitutional statutes, EU law and the common law (including the recognition of prerogative powers), as well as non-legal rules, which comprise conventions, the law and customs of Parliament, and academic opinion. Correct.

Answer 42

The Home Secretary should impress on the House of Lords that it has a constitutional obligation under the Salisbury convention to respect the mandate of the Commons, meaning that it should consent to the Bill when it is presented before it on the next occasion. correct incorrect The Home Secretary should impress on the House of Lords that it has an obligation to consent to the Bill when it presented before it on the next occasion, as the matter relates to national security which is a matter on which the Lords should defer to the electoral mandate of the Commons. This is a point that may be argued by the government in the Commons, but it is rather intangible and not a recognised convention as such.

Answer 43

The UK is a constitutional state with no formal constitution. Its lack of entrenched constitutional rules in a founding document is significant but this does not mean to say that there are no legal or conventional protections preserving constitutional values and standards. Correct

Answer 44

The powers of the UK Supreme Court are more limited than that of the US Supreme Court, as it is not possible for the UK Supreme Court to invalidate primary legislation. correct incorrect Certain constitutional conventions, such as the Sewel convention, which regulates aspects of the relationship between England and Scotland, have such significance that the courts will be willing to enforce them in certain circumstances. This is incorrect. While certain constitutional conventions may have particular importance in allowing the UK’s constitution to function, constitutional conventions are not legally enforceable. This was confirmed in the case of Miller in which the Supreme Court stressed that conventions such as the Sewel convention are political rather than legal in nature.

Answer 45

The general principle is that powers given by Parliament to particular ministers in the Executive should be exercised by that person. However, there is a recognition in both constitutional and legal terms, that delegation is necessary in the interests of governmental efficiency and so it would not be unlawful for delegation in this situation to the civil servant. The Chancellor would, however, remain responsible for these actions in the political arena.

Answer 46

Since 1998 the process of devolution has been a developing one with significant practical effects on government and the division of responsibilities between the constituent countries of the UK, albeit one which has not changed the ultimate centralised sovereignty of Westminster. correct

Answer 47

The CRA clearly did not introduce the idea of an independent judiciary to the UK but it arguably enhanced the status of the higher judiciary as well as introducing a series of reforms that ironed out some of the more confusing functional overlaps in the UK’s traditional separation of powers model. correct

Answer 48

The court is likely to find that the office of the Minister in the Home Office had been in contempt of court. Correct. This is similar to what happened in the leading case of M v Home Office. It represents a clear example of the separation of powers in operation: an independent judiciary performing its primary function of impartially applying the law, in this case against a high office of state.

Answer 49

The UK’s executive is potentially very powerful, but the judiciary is able to exercise a degree of control and oversight through the process of judicial review, which has expanded notably in the last 40 years or so. Significantly, this also permits the courts to invalidate secondary legislation, created by the executive, if this is deemed outside or ‘ultra vires’ the powers given by Parliament.

Answer 50

The court is entitled to develop common law principles and will attempt to do so by seeking to take into account contemporary social attitudes as long as there is a reasonable degree of consensus over these. This is the best answer as it shows that, in the absence of clear (or any) statutory guidance, the courts can develop legal principles through the common law. However, when doing so, the courts are mindful of the need to represent contemporary social attitudes and values. See, for example, the case of R v R.

Answer 51

Parliament has the right to make or unmake any law whatsoever. Correct. This relates to the principle of Parliamentary Sovereignty rather than to that of the Rule of Law, as it is about where law comes from rather than the nature of it.

Answer 52

The court will fully interpret the relevant legislation, under which the county council was acting, but it appears at face value that it was not given the statutory power to give grants, only to provide loans. It is likely, therefore, that its actions will be declared ultra vires and therefore unlawful. Correct. The actions taken appear to have been beyond the powers given to the council.

Answer 53

The court is likely to put considerable emphasis on the impact caused by the introduction of the closure fee and find that this has severely undermined the important constitutional principle of access to justice. There is a strong possibility that the court will consider the fee to be unlawful, in the sense that Parliament cannot have intended to allow such a change in the parent Act, and therefore quash the S.I. Correct. Refer back to your materials and in particular the leading case of Unison.

Answer 54

The courts will interpret discretionary statutory powers in a way that upholds key rule of law principles, such as fairness, legality and reasonableness, so that they can ensure some degree of legal control over how such powers are exercised by different parts of government. Correct

Answer 55

The court faces a difficult issue here which will involve it in balancing its assessment of the purpose and intent of these powers, given by Parliament, with the impact upon the company of what appear to be quite draconian actions. It is probable that a modern court will put the DSA to proof in relation to the lack of ‘due process’ and detailed accusations against the company, and be prepared to declare the search unlawful, if insufficient evidence can be supplied that such action was necessary. Correct. This answer reflects how the modern courts will interpret and assess the legislative position in the light of substantive rule of law concerns over how discretionary powers have been exercised. It is possible to see a precursor of this kind of approach in Lord Denning’s judgment in the Court of Appeal in the Rossminster case.

Answer 56

Under s.3 of the HRA the court will first consider if it can interpret s.17 in a way that makes it compatible with Article 8. If the court does not consider it is possible to do so, it may make a declaration of incompatibility in relation to s.17. This would need to be responded to by the SoS, but it would not compel the government to seek a change in the law. Correct. If a statutory provision is incompatible with a right in the ECHR, the courts have two alternative routes they can take, as outlined in this answer. Note too the effect of a DOI.

Answer 57

If it wishes, Parliament may pass legislation that prohibits conduct in places outside the jurisdiction of the UK, even if the act in question would not be prohibited by the authorities in that territory. Correct. There are no geographical limitations upon the legislation that Parliament may pass. This would not be invalid legislation, (though its political purpose would be highly dubious!) incorrect In a situation where Parliament has passed a piece of legislation but where it is clear to the court that the Act was not passed according to the correct procedure, it is open to the court to quash the legislation because of the procedural irregularity. This is not the correct answer. If a bill has been enrolled – in other words, it has become an Act of Parliament – it is impossible for a court to go behind that. Any departure from normal procedure during the passage of the bill cannot be corrected by the courts. See the cases of Edinburgh and Dalkeith Railway and Pickin. The effect of the judgment in the case of Jackson is that it is now possible for a Parliament to ‘redefine itself upwards’ by requiring a particular parliamentary majority or a popular referendum for a particular type of measure. This is an overstatement of the effect of Jackson as in that case, the court suggested only (very much in obiter) that this course of action may be possible, not that it is in fact now possible.

Answer 58

It is certainly possible for Parliament to pass legislation to this effect and the PCPA would remain in operation until such time as a future Parliament wished to reverse the policy. In order to do so, that future Parliament would have to pass new legislation expressly re-introducing the death penalty. Correct. The PM will be able to get the Act passed, assuming there is a majority for her to do so. However, the doctrine of parliamentary sovereignty means that today’s Parliament cannot bind a future Parliament, so the PCPA and its ban on bringing back capital punishment cannot be permanently entrenched.

Answer 59

The local authority would be unsuccessful in challenging the amount and would be obliged to accept the figure in the 2019 Act, as this Act represents the most recent expression of Parliament’s sovereign will. Correct Correct. This accurately reflects the operation of the principle of implied repeal.

Answer 60

The core constitutional principle of parliamentary sovereignty means that there is no legal limitation on the Westminster Parliament legislating to reverse the devolution settlement in the UK, in spite of the existence of the Sewel convention. Correct. This is an accurate summary of the position regarding the status of the devolution legislation. Note that this does not mean there are no political limitations.

Answer 61

Prerogative power is not as broad a source of governmental power as it was, given the increase in the number of statutes over the last century in particular. The prerogative remains significant constitutionally, but it cannot be seen as a special form of power anymore, as it is no longer immune from the legal controls exercised over other governmental powers. Correct Correct. This briefly describes both the narrowing in scope of the prerogative and the change that has happened over time in the degree to which this form of power is reviewable by the courts. incorrect Prerogative power remains a very significant form of governmental power and, although political controls over it have been enhanced over the last century, it can still be seen as a special and unique form of power resting in the hands of the Prime Minister and Cabinet with only limited legal controls over it. This is not the best answer as it overstates the proportionate size of the prerogative within the overall range of powers held by government. Importantly it only refers to the increasing political controls over its use; there is no reference to the enhanced legal reviewability of how the government uses these powers. Re-visit your materials on the control of the prerogative.

Answer 62

The Court will decide that the statute should prevail over the prerogative power, even if the statutory provision has not yet been put into implementation. Correct This is correct because the courts have clearly held that prerogative powers cannot frustrate the will of Parliament – most notably in the case of R v Home Secretary ex p Fire Brigades Union.

Answer 63

The courts will accept applications to review the manner in which the government exercises all of its prerogative powers, except those which are simply not appropriate for judicial deliberation, such as appointing ministers or granting honours or taking military action against an enemy state or organisation. However, if justiciable, the courts will apply a sliding-scale approach of varying intensity of review dependent upon the subject matter of the case before them. Correct Correct. This statement captures the current development of this area of judicial review of prerogative power.

Answer 64

The court will accept jurisdiction for the case, even though the power to issue passports falls under the broad foreign affairs prerogative, because it is seen as falling at the administrative end of the spectrum and there is therefore no doubt nowadays that is a ‘justiciable’ matter. Correct. Note that this was very much the approach taken by the court in the case of R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett. incorrect The court will accept jurisdiction for the case but, because the power to issue passports falls under the broad foreign affairs prerogative, it will only apply the least intense or lightest touch degree of review. This is not a correct answer, as it does not take into account the particular nature of the function being carried out by the Foreign Office when issuing or renewing passports. There is a very broad range of functions carried out in the diplomatic service and the issuing of passports falls at the administrative rather than policy end of the spectrum, meaning that the intensity of review would not be at the low end in this instance. Re-visit your materials on control of the prerogative post-GCHQ and in particular the case of R v SoS for Foreign and Commonwealth Affairs, ex parte Everett.

Answer 65

It would consider the matter justiciable and review the policy and actions of the Foreign Office using a relatively light intensity of review. Correct. It is very likely that the modern courts would accept jurisdiction for such a case, as long as a clear basis for legal challenge could be established, but that the intensity of review would be light, given that the subject matter of the dispute relates to diplomatic policy. incorrect It would consider the matter justiciable and review the policy and actions of the Foreign Office using a relatively high intensity of review. This is not the best answer. It is very likely that the modern courts would accept jurisdiction for such a case, as long as a clear basis for legal challenge could be established. However, given that the subject matter of the dispute relates to diplomatic policy and is therefore more of a political than an administrative issue, the intensity of review would be low rather than high. Re-visit your materials on control of the prerogative post-GCHQ and in particular the case of R v SoS for Foreign and Commonwealth Affairs, ex parte Abbasi.

Answer 66

Regulations, Directives and Decisions. This is correct. They are legally binding secondary legal acts which are provided for by article 288 TFEU. They are classified as legislation where they are made using a legislative procedure (article 289(3) TFEU). incorrect Directives, the Charter of Fundamental Rights, and Regulations. This is incorrect – Directives and Regulations are both legally binding secondary forms of EU legislation. However, the Charter of Fundamental Rights is a primary source of EU law. This is because article 6(1) TEU provides that the Charter has the same legal status as the treaties, which are primary sources.

Answer 67

Overarching legal principles which apply generally across EU law. This is correct – The concept of ‘general principles of EU law’ refers to a particular category of overarching legal principles which apply generally across EU law. They are used to aid the interpretation of the more specific rules of EU law, to assess the lawfulness of the activities and secondary legislation of the European Union, and to determine the lawfulness of those activities of the Member States which fall within the scope of EU law. incorrect All legal principles which are addressed to the Member States in general. This is incorrect – This is not an accurate definition of the concept of ‘general principles of EU law’. It fails to capture the central characteristic of general principles of EU law. Moreover, not all legal principles which are directed at the Member States in general are classified as general principles of EU law. There are also general principles of EU law which are not directed solely to the Member States.

Answer 68

Only the general principle of EU law will be binding. This is correct– The High Court continues to be bound by the general principle of EU law as this had effect in EU law immediately before the end of the transition period on 31 January 2021 (ss.6(3) & 6(7) EUWA 2018). However, the High Court is not bound by the judgement in the case decided by the Court of Justice six months ago as this was after the end of the transition period, although they may have regard to that judgment (s.6(1)(a)). Neither is the High Court bound by the Charter of Fundamental Rights as under s.5(4) of the EUWA, the Charter has not been part of UK law since the end of the transition period. incorrect Only the Charter of Fundamental Rights will be binding. This is incorrect – Under s.5(4) of the EUWA 2018, the Charter has not been part of UK law since the end of the transition period on 31 January 2021. It is not binding on the High Court as a result. In contrast, while the High Court is not be bound by the judgment in the case decided by the Court of Justice six months ago as this was decided after the end of the transition period (s.6(1)(a)), it continues to be bound by the general principle of EU law as that principle had effect in EU law immediately before the end of the transition period (ss.6(3) & 6(7)).

Answer 69

The court would be required to disapply the Act of Parliament as it is incompatible with the EU Regulation. This is correct – The issue concerns the rights of a Union citizen who was resident in the United Kingdom at the end of the transition period. The Withdrawal Agreement provides for some EU law to continue to apply in relation to such Union citizens and, indeed, the question confirms that the issue falls within the scope of an EU Regulation which was preserved by the Withdrawal Agreement. As it is preserved by the Withdrawal Agreement, it is governed by s.7A of the EUWA 2018. This, together with s.5(7) of the EUWA 2018, ensures that the supremacy of EU law will continue to apply in this situation. Under that principle, where national law is incompatible with EU law, the national courts are required to disapply national law (Simmenthal; see also the House of Lords in ex p. Factortame). incorrect The court would be required to issue a declaration of incompatibility which formally notifies Parliament that the Act of Parliament is incompatible with EU law. This is incorrect – Nothing in EU law, the Withdrawal Agreement or the European Union Withdrawal Acts provides for such a remedy in these circumstances.

Answer 70

The court would be required to apply the Act of Parliament as the principle of the supremacy of EU law no longer applies in this context in the UK. This is correct – The EU Regulation forms part of the bulk of EU law which is not preserved by the Withdrawal Agreement. It will be classified as Direct EU Legislation under s.3 EUWA 2018 and, as such, will form part of the EU law retained by ss. 3 to 4 of the EUWA 2018. In relation to that retained EU law, s.5 of the EUWA 2018 specifies that the principle of the supremacy of EU law does not apply to any domestic law made after the end of the transition period. The Act of Parliament in the question was clearly passed last month and therefore after the end of that period. It can therefore be amended or repealed by any of the methods in s.7 and Sch.8 of the EUWA 2018. This includes by an Act of Parliament.

Answer 71

The primary responsibility for the protection of Convention rights lies with the contracting states and consequently, they are allowed a degree of discretion when taking legislative, administrative, and judicial actions that restrict Convention Rights. The doctrine relies upon the premise that the ECHR scheme should respect the contracting states’ different political, social, and cultural traditions, which are best understood by the states themselves. A wider margin of appreciation will be afforded to contracting states in cases involving, for example, questions of morality and national security. However, state discretion is not unlimited, and it is subject to the ultimate supervision of the ECtHR. Correct. This statement is an accurate synopsis of key aspects of the margin of appreciation doctrine developed by the Strasbourg court.

Answer 72

It is very likely that ForceCorps Ltd, though a private company, would be treated as a functional or hybrid public authority in this context, as it is clearly exercising a public function with respect to the provision of immigration detention services. Correct. ForceCorps would be seen in this context as a functional or hybrid public authority because of the nature of the function it is carrying out in administering immigration services under statutory powers. It is effectively taking the place of central government in delivering these services. Refer back to the key case of Aston Cantlow.

Answer 73

SUIN will not have standing to challenge the surveillance activity because it is not directly affected by this activity as an organisation in its own right; it is only interested in the general policy behind it. Correct. This statement reflects the test for standing to bring a claim under the HRA 1998 which is that the applicant must be a directly affected victim of an interference with one of its Convention rights. Refer to sections 7(1) and 7(7), HRA 1998, article 34 ECHR, and the case of Klass v Germany. Under the HRA, the case would need to be brought by individuals affected by the surveillance activity, in other words, by the family.

Answer 74

Whilst the court will acknowledge that the s. 3 duty is a strong one, it is more likely that it will decide it is unable to use s. 3 to read the legislative scheme in a Convention-compatible way and, instead, it may grant a declaration of incompatibility. This is because the case involves matters of complex policy which the court may well feel it is not the appropriate body to deal with. Correct Correct. Although the approach of the courts is that they will clearly try to use s. 3 wherever possible, they have identified limits to the proper use of s. 3. In Bellinger Lord Nicholls set out the reasons why the court could not use its s.3 power in that case, which are arguably analogous to the facts here. Whilst the Gender Recognition Act, which post-dates Bellinger, provides rights to be legally identified as a gender that is different from one’s biological sex, it does not deal with the range of gender identities that fall outside of male and female and are sometimes grouped together under umbrella descriptions such as ‘non-binary’. The court may decide to make a declaration under s. 4, therefore. incorrect The court is likely to use its s. 3 power to read the incompatible provisions in a Convention-compatible way. The s. 3 duty is a strong one which should be used wherever it is possible to do so. Here, it would be possible to read down the legislation in a way that provides for a broader understanding of gender identity. This is not the best answer. Whilst it is accurate to state that the s. 3 power is a strong one, this answer fails to acknowledge the limits of s. 3 and the policy context of the case. In Bellinger, Lord Nicholls set out the reasons why the court could not use its s.3 power in that case, which are arguably broadly analogous to the facts here.

Answer 75

In determining whether a statutory provision is compatible, the court will simply consider and give weight to any declaration the relevant minister may have made under s. 19 HRA. Correct. This is not an accurate description of the status of a s. 19 declaration. Whether a particular provision is ultimately seen as compatible with the relevant Convention right is a judgement call for the courts and not for the minister sponsoring the original legislation.

Answer 76

The state has a duty under article 2 to refrain from using lethal force except in very particular circumstances. The police are likely to argue that it was absolutely necessary to use such force in this situation in order to protect the Foreign Secretary from unlawful violence. Your client may have a reasonably strong argument that the state has failed in its investigative duty under article 2. Correct. This answer best reflects the law under article 2 and the likely merits of the client’s case. The police could argue that they were justified in taking life in this situation, but your client is likely to be able to successfully argue that the state has failed in its investigative duty. The investigation must be public, independent and involve the full participation of the family. At least two of these requirements appear to have been breached. Refer to the case of R (Amin).

Answer 77

You explain to the family that NASS as a public authority has a positive obligation on it to take reasonable measures to prevent people under its care from being exposed to the risk of inhuman and degrading treatment at the hands of third parties. This is not an absolute duty but, if the extent of the harm to the family reaches this threshold, article 3 will be engaged and, if NASS had actual or constructive knowledge of what was happening, legal action on the basis of article 3 could result in an order that the family be moved to more suitable accommodation. Correct. This is the best answer as it explains the operation of the positive obligation in this kind of context.

Answer 78

The starting point should be to consider the concrete situation of the person who is subject to the measures that limit their liberty. Whether these measures amount to a deprivation rather than a restriction will depend upon the degree of their intensity. Relevant factors to this assessment include the type, duration, effects, and manner of implementation of the measure in question. Correct. This statement reflects the principles established by the ECtHR in the cases of Engel and Guzzardi.

Answer 79

Your client would have a reasonably strong case that there had been a violation of his article 5(3) right. Even though the ECtHR has accepted that the police may in some situations detain a suspect in custody for up to four days, shorter periods can still be seen as incompatible, depending on the context of the case. It is unlikely in this context, involving a significant but not a violent, armed or terrorism-related crime, that a court would accept that a detention of 74 hours without any form of judicial oversight was justified. Correct. This summarises the best advice. Refer to the case of McKay v UK in particular. Note in that case that a significantly shorter period - of 36 hours - was seen to fall within the art 5(3) right.

Answer 80

The client cannot bring a legal challenge against the police on this basis, because following his arrest and detention he was not charged with an offence. Correct. In Murray v UK, the ECtHR clarified that article 6 can apply to the whole criminal process, including the pre-trial stage from the point of arrest. However, this is contingent upon the applicant being charged with an offence. On out facts, the client was released without charge and therefore, his article 6 rights were not engaged. The requirement for a charge to have made is clear in the wording of all three parts of article 6. incorrect There is good merit in challenging this decision under articles 6(1) and 6(3)(c) because the police’s justification for denying the client access to a lawyer did not amount to a good reason for doing so. Incorrect Incorrect. Whether or not the police’s reason amounts to ‘good cause’ (Murray v UK’) is academic. The client’s article 6 rights were not engaged because he was not charged with an offence. In Murray v UK, the ECtHR clarified that article 6 can apply to the whole criminal process, including the pre-trial stage from the point of arrest. However, this is contingent upon the applicant being charged with an offence. The client cannot challenge the decision of the police to deny him access to a lawyer because they provided a good reason as to why access was withheld. Incorrect. The police did provide a reason but whether it is ‘good cause’ (Murray v UK’) or not to have denied the client access to legal representation is academic. His article 6 rights were not engaged because he was not charged with an offence. In Murray v UK, the ECtHR clarified that article 6 can apply to the whole criminal process, including the pre-trial stage from the point of arrest. However, this is contingent upon the applicant being charged with an offence.

Answer 81

Private life is a broad and evolving concept which covers a variety of interests and human characteristics, including a person’s physical, mental, and moral integrity. Correct. This statement accurately reflects the nature and scope of ‘private life’ under article 8 and provides an example of one of the categories that is protected under private life.

Answer 82

There is good merit in a challenge because the courts have found that a high degree of protection applies to prisoners’ communications with their legal advisors. Privileged legal correspondence should only be opened where there is reasonable cause to believe it contains a prohibited item, and letters should only be read where the authorities have reasonable cause to believe that the legal privilege is being abused. There is nothing to suggest that these circumstances apply to the client. Correct. This statement accurately reflects the ECtHR’s position in Campbell v UK, that the opening of prisoners’ privileged legal correspondence will be a disproportionate interference, unless the particular circumstances identified in Campbell apply. Refer also to the domestic case of Daly.

Answer 83

If it can be demonstrated that the client’s book is a work of proper, critical journalism which, whilst discussing and evaluating the group’s views, does not propound or endorse them, there is a reasonably good prospect that a court would find that the authorities’ measures are a disproportionate interference with his right to the freedom of expression. Correct. This statement is largely analogous with the ECtHR’s approach in Jersild v Denmark. The domestic courts and the ECtHR have recognised that journalistic freedom of expression should be afforded a higher degree of protection than some other areas which do not contribute to credible public debate.

Answer 84

The court is likely to consider that although the story may be considered to be in the public interest because the former minister is a significant public figure, in relation to the further information about the mother and child, it is likely that an injunction may be granted in order to protect the privacy of the child in particular. This is the best answer. The courts will pay special attention to the privacy rights of children, as indicated in cases such as Murray v Express and Re S (A child).

Answer 85

She has a reasonable case for arguing that broadcasting of the filming and her identity should be restrained, as the matter engages her and her partner’s private and family life in a particularly acute way. The news channel may be able to argue that the story is in the public interest and therefore that publication of the basic information may be appropriate. However, unless it can show a strong public interest justification for disclosing the identity of the couple, it is unlikely that the film footage of her and of their house will be allowed, as this will give away her identity. This is the best answer. The actual information concerning the proposal to allow artificial insemination for a serious offender may well be considered to be in the public interest. The privacy interests (and possibly the safety) of his partner could be put at risk, however, if the film and the identification of her and where she lives is broadcast. Medical information is also seen as particularly private – see for instance Campbell v MGN – and the manner in which it has been obtained will be a further factor for the court to weigh up. See also Ashworth Security Hospital case.

Answer 86

The courts have adopted an increasingly liberal approach to individuals and groups who wish to challenge administrative decisions in relation to matters in which their own interests may not necessarily be directly impacted but in which they nonetheless have a genuine concern about a public issue, which it is important to challenge in order to vindicate the rule of law. Correct. This statement reflects the approach of the courts in cases such as Rees-Mogg, Walton, World Development Movement and Corner House Research.

Answer 87

It is unlikely that the Assembly’s decision is amenable to judicial review. On the facts, the rules affecting the client come from an agreement between clubs and their members and the Assembly, giving rise to private rights and remedies. Correct. This represents the most likely conclusion and the reason for it. This scenario is broadly analogous to cases such as ex parte Aga Khan involving the Jockey Club.

Answer 88

It is for the court, not the legislature, to determine the level of scrutiny required by the rule of law. The courts strike an appropriate balance between the inferred intention of Parliament and the rule of law. Correct. This reflects the judgment of Lord Carnwath in Privacy International.

Answer 89

The client can challenge the salary and bonus scheme decisions by judicial review. Whilst her claim involves issues of public and private law the courts no longer rigidly apply the procedural exclusivity rule. The facts do not suggest that the client’s chosen proceedings would flout the general principles contained in Part 1 of the Civil Procedure Rules. Correct. This position reflects the modern courts’ approach to mixed public and private law claims in cases such as Clark.

Answer 90

There are procedural issues which could affect whether the club is granted permission to bring a claim or whether it ultimately receives a remedy for any errors in the decision-making process. Even if a claim is filed straight away, the court could find ‘undue delay’ and could also object to the club’s failure to engage with the Ombudsman scheme. The degree to which these issues will have an impact is a matter for the court’s discretion. Correct. It is arguable that the club has not acted ‘promptly’. Whilst there is no technical barrier (in the Civil Procedure Rules) to bringing a claim where alternative remedies might be available, the courts will consider this as a factor at the permission stage. incorrect There are procedural difficulties. The court could find ‘undue delay’, even if the claim is filed within three months of the date of the letter, and the club should have engaged with the Ombudsman scheme, or at least have an explanation as to why the scheme could not offer a suitable and equal remedy. These issues are likely to impact upon the court’s permission decision, but if permission is granted, they will have no impact upon remedies. Incorrect This is not the best answer. The answer fails to appreciate that, even if a procedural issue is not a barrier to a grant of permission, it can still be a barrier to the grant of an interim or final remedy. Refer back to your materials on the preliminary requirements generally.

Answer 91

The UK courts seek to ensure that an appropriate separation of powers balance is achieved by considering their constitutional entitlement and institutional competence to review decisions. Correct. The court will consider whether the subject matter of the case before it is something it should properly intervene in (constitutional entitlement). This is linked to the question of whether the court has the appropriate knowledge and expertise to review the decision in question (institutional competence). Both considerations reflect the courts’ reluctance to interfere in areas which are better left to executive decision-making and expertise. incorrect In distinguishing between matters concerning broader policy questions and those involving fundamental rights, the courts are purely intent on promoting the rule of law. This is not the best answer. It is possible to argue that, by applying a high intensity of review to cases involving fundamental rights, the courts are promoting the rule of law, but this does not reflect the whole rationale for the sliding scale approach.

Answer 92

RCC’s decision suggests that it failed to take into account mandatory considerations, and it may also have fettered its discretion through rigid application of its noise policy at the expense of an individual consideration of the client’s application. Correct. On the facts, it looks like RCC did not consider the opinions contained in the letters of support which relate to the mandatory factors in section 22. In addition, we are told that RCC applied a policy which precludes the client from being given a licence; the first issue - the failure to consider the letters - indicates that RCC did not consider individual aspects of the application.

Answer 93

Government ministers, and some other public office holders, are permitted to delegate their discretion to sufficiently senior officials within their own departments, so long as accountability remains with the minister or the office holder who has the statutory power Correct. This accurately represents the principle and its expansion beyond Ministers to other public office holders such as Chief Constables, as per the case of R (Chief Constable of West Midlands Police) v Birmingham Justices, as well as the seniority requirement discussed in cases such as Oladehinde

Answer 94

Whilst the decision to make such an extreme cut to BCC’s regional transport funding might be seen as arbitrary and inconsistent, it is likely that a court would apply a particularly low intensity of review to any claim brought by BCC because of the political and financial context. Consequently, on the facts of this case, a claim is unlikely to succeed. Correct. Whilst there may be prima facie grounds to argue that the SoS acted unreasonably, it is likely a court would apply a low intensity of review to the claim, meaning that a ‘super-Wednesbury’ standard would apply. This is a high policy matter concerning central government funding allocation linked to deficit reduction. The court is likely to consider that reviewing this type of decision made by a democratically elected official is not within its constitutional remit, and, that it does not have the requisite expertise. Refer to the lead case of Nottinghamshire County Council. Unless there has been a very clear abuse of power, the courts will not intervene in macro-economic or political decisions.

Answer 95

The decision-maker might have erred in law through a misunderstanding of section 15 of the Act. The decision suggests that ‘quantifiable’ has been construed too narrowly as only relating to financial benefit. However, it is unlikely that a court would decide to quash the decision, as the provision gives a wide degree of discretion and is capable of bearing a wide range of meanings. Correct. Whilst it is arguable that there is an error of law here, the claim may fall foul of the ex parte South Yorkshire Transport principle in that the court could find ‘quantifiable difference to the community’ to be an imprecise phrase capable of bearing a wide range of meanings.

Answer 96

The courts have recognised that there is a general duty to act fairly in administrative and judicial decision-making. The key question, in determining whether that duty has been breached in any given situation, concerns the level of fairness that should apply; this will vary depending on the overall context of the case. Correct Correct. The existence of a general duty was recognised in Ridge v Baldwin where the court said that the question concerning the court should be the extent of the justice required in any given situation. The significance of the context of the decision and the legal issue in question was discussed in cases such as Durayappah and Lloyd v McMahon.

Answer 97

The client has a potentially strong claim based upon indirect bias. Correct. It is likely that a ‘fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility’ that the committee was biased as per the test in Porter v Magill. On the facts, there is a close family relationship between the competitor company MD and one committee member. It is not a mitigating factor that only one committee member was potentially biased, as he would have had influence as a decision-maker. Refer to cases such as Hannam where three out of ten of the decision-making committee were potentially biased, and ex parte Hook, where the mere presence of a potentially biased person who was not a decision-maker was enough for the court to quash the decision.

Answer 98

It is likely that your client’s challenge will be successful in respect of the failure to call an oral hearing. The level of fairness that would be appropriate for her in this situation can be described as medium-high, given the serious professional consequences for her, and so the court is likely to consider that she should have been given the opportunity to present her version of events and to try to convince the committee of her good character, experience and bona fides. It is a little more debatable whether a court would consider it to have been unfair to have refused her permission to call a barrister, as this was a professional disciplinary rather than a purely legal process. Correct. This is the best answer as it stresses the relatively high level of fairness that would be expected in this situation. It also points to the reason why an oral hearing would be appropriate and functionally useful as well, because such a process would have given your client the opportunity to convey her character and her experience to the committee, and enabled her to have maximum opportunity to refute any allegations. See cases such as Smith & West and Osborn. The answer also reflects more caution in respect of the barrister issue – this is more of a moot point, given that the Administrative courts can be wary of making administrative processes too legalistic.

Answer 99

It is unlikely that your client will succeed on this basis. The failure of the committee to send “notice in writing” appears to be a technical breach of section 13 but it does not seem on face value to have prejudiced him in any significant way. The court is therefore likely to construe from the situation that Parliament could not have intended such a breach to be sufficiently serious to justify the invalidation of the overall decision. It would be prudent, however, to look further into whether the copies of the two anonymised letters represented “all available (relevant) evidence” against him. Correct Correct. This best reflects the approach of the modern courts to statutory procedural obligations following the cases of R v Soneji and JN(Cameroon). It would also be wise to check on whether there was any other evidence against your client – maybe of a more damaging nature – that was not disclosed, thereby depriving him of the opportunity to provide some mitigation

Answer 100

Whilst a statement of policy is capable of amounting to a legitimate expectation, CBC’s prospects are adversely affected by two key issues. Firstly, it is debatable whether a statement saying that the government has ‘no current plans’ amounts to a clear and unambiguous promise. Secondly, as this is a macro-policy matter, the court will be reluctant to intervene in any event. Correct. It is questionable whether the Minister’s policy statement contained in their letter is sufficiently clear. In ex parte MFK Underwriting the court said that promises should be ‘clear, unambiguous and devoid of relevant qualification’. Even if the applicant can demonstrate a legitimate expectation has arisen, it would be unlikely, given the macro-policy nature of the matter, that the court would intervene. In Begbie the court found that, where a promise had policy implications and was made on a ‘macro’ level, review would be restricted to a Wednesbury unreasonableness standard. There was a similar approach in the Re Finucane’s Application case.

Answer 101

incorrect The police’s actions are lawful because all public processions have to be justified by their organisers in advance, in case scarce public resources need to be expended in supervising or controlling them. Incorrect. This is the rationale for most public processions but not for all of them, as outlined in the exemptions provision in s. 11(2).

Answer 102

incorrect The imposition of conditions by the police complies with the spirit of the legislation as the behaviour of the demonstrators is intimidatory but the police are only allowed to impose conditions on the place and duration of assemblies of individuals and not on their maximum size. Incorrect. This is not accurate in relation to the nature of the conditions that can be imposed on assemblies under s. 14(1).

Answer 103

incorrect It will be possible for conditions to be imposed under s. 14A in relation to the place, duration and maximum number of attendees in the park and botanical gardens, as long as the police can show that the group’s activities may give rise to serious disruption to the life of the community. However, it will not be possible under s. 14 for the police to impose a ban on any form of assembly inside the Palm House. Incorrect. This is correct in substance but the section numbers of the two provisions in the Public Order Act have been wrongly quoted.

Answer 104

It is likely that the arrest of the seven men was a legitimate use of the police’s common law power to prevent a breach of the peace. However, the arrest on the same basis of the two other men does not appear to have been lawful as there seems not to have been an imminent threat of violence.

Answer 105

The journalist can defend herself against the charge by arguing that, even though she knew that she was part of a march which was processing down a forbidden route, the matter was outside her control, as she was unable to extricate herself from the crowd. Correct. Under s. 12(5) POA this defence would be available to her.

Answer 106

positive obligations margin of appreciation proportionality

Answer 107

duty on state to seek to prevent violation of ECHR rights by 3rd parties

Answer 108

ECtHR will afford leeway to national authorities on matters which they are better placed to decide

Answer 109

was it necessary to interfere with rights to the degree carried out? balance between the individual and collective (legitimate) aim notably qualified rights (NIADS)

Answer 110

standing jurisdiction time limits defendant authority

Answer 111

core PAs functional PAs private bodies

Answer 112

potentially liable in ALL situations s6(1) HRA -- unlawful to act incompatibly with ECHR rights (subject to s6(2) defence) includes courts and tribunals s6(3)(a)

Answer 113

s6(3)(b) and s6(5) - Aston Cantlow liability depends on nature of function/act context - housing associations, nursing homes...

Answer 114

these are never liable under the HRA

Answer 115

s6(1) --> it is UNLAWFUL for a PA to act INCOMPATIBLY with an ECHR right = main enforcement mechanism in domestic courts however, s6(1) does NOT apply if a statutory provision either obliges or allows a PA to act incompatibly = statutory defence -- NB parl sov

Answer 116

s3(1) so fas as possible legislation MUST be read and given effect in a way which is compatible with ECHR rights court power to render legislation compatible with relevant right DEFEATS statutory defence: remedy

Answer 117

s4(2) court MAY declare that a provision is incompatible with relevant right does not invalidation incompatible law -- flags problem for minister (parl) to fix -- but not compulsory statutory defence remains: no remedy

Answer 118

courts CAN - interpret a provision even if the language is clear - adopt a linguistically strained interpretation - read down language (ie adopt a narrower meaning) -read in woreds/imply in provision - DOI: measure of last resort? BUT court CANNOT - change substance of provision completely - make changes which go 'against the grain' of legislation - contradict or delete provisions in the legislation - make decisions for which the court is not equipped

Answer 119

is a s6(2) defence engaged? no: liability under s6(1) = s(8) REMEDY yes: s3 interpretative obligation -- is compatible interpretation possible? -- yes: s6(2) defence fails and PA is liable = liability under s6(1) = s(8) REMEDY -- no: s6(2) defence succeeds and PA is not liable so no remedy ---- s4 DOI? gov and parl -- can amend offending provision by s10 remedial order -- OR do nothing

Answer 120

articels 2, 3, 5 and 6

Answer 121

2(1) everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally 2(2) -- limitations deprivation of life shall NOT be regarded as inflicted in contravention of this Article when it results from the use of force which is NO MORE THAN ABSOLUTELY NECESSARY eg in defence of any person from unlawful violence NOT an absolute right +ve obligations

Answer 122

wider operational application security planning: managemetnt; "command and control"; training McCann -- 'Death on the Rock' case

Answer 123

investigatory obligation proactive; systemic; invovlement of families Amin case -- Feltham YOI

Answer 124

to what extent does the state owe a duty to safeguard life? context - duty on police to prevent violence by third parties (Osman v UK) - duty on hospitals to prevent death of patients: Rathbone v Pennnine Care NHS Trust

Answer 125

no one shall be subject to torture OR to inhuman or degrading treatment or punishment" absolute right (no limitations and no derogation from it by state, article 15) +ve obligations - removal or extradition of individuals from the UK to countries where they may face torture or inhuman and degrading treatments eg soering torture needs proof + numerous factors: cumulative

Answer 126

torture: aggravated; deliberate and cruel treatment inhumane and degrading treatment: - serious and ill-treatment or neglect - nature and context of the treatment, the manner of its execution, its duration, and its physical and mental effects ... its impact on the health of the person involved

Answer 127

right to liberty 5(1): deprivation of liberty (arrest) 5(2): reasons for arrest - Reason for arrest can be indirect ie through nature of questioning 5(3): detention period after arrest 5(4): proceeding to challenge lawfulness of detention 5(5): right to compensation

Answer 128

question + two-stage test Has there been a deprivation of liberty? - if so, art 5(1) = engaged - restriction < deprivation - Guzzard v Italy 1 -- save in the following cases - 5(1)(c) reasonable suspicion 2 -- AND in accordance with a procedure prescribed by law (PBL)

Answer 129

1 -- article 5(1)(c) "on reasonable suspicion of having committed an offence or when it is reasonably considered to prevent his committing an offence..." - Reasonable = tangible not just a hunch OBJECTIVE standard: fox, Campbell & harley v UK 2 -- is arrest PBL? Sunday Times test -- legal authority --- adequately accessible: ie statute --- formulated with sufficient precision to allow citizen to regulate his conduct Gillan & Quinton protection against arbitrary interference by state

Answer 130

for how long can the police detain a suspect on its own authority before further detention is approved by the (independent) judiciary? detainees should be: 'brought promptly before a judge' Brogan v UK -- terrorism related -- 4 days 6 hrs -- too long --> McKay v UK: interpreted Bogan guidance as allowing 4 days max less serious matters or potentially vulnerable detainees (minors) --> lower time limit

Answer 131

article 6(1) = over-arching right - applies to determinations of civil law and criminal law - 'FAIR and PUBLIC hearing within a REASONABLE time by an INDEPENDENT and IMPARTIAL TRIBUNAL established by law' article 6(2): presumption of innocence until proven guilty article 6(3): set of minimum rights owed to everyone charged with a CRIMINAL offence

Answer 132

key application of constitutional theory and ideal of the rule of law = fairness and impartiality in all aspects of the legal process = 'access to justice' article 6(3)(c): most important of the criminal law process rights = right to legal representation -- from early investigation stages onwards, though can be temporarily denied for 'good reason' (Murray v UK)

Answer 133

the right to silence -- art 6(1) and (2) -- consequences of relying on this - so this isn't an absolute right -- adverse inferences can be drawn at trial -- not absolute due to adverse inferences the right against self incrimination -- developed from presumption of innocence -- if a suspect is compelled to confess or give up evidence involuntarily (that is prejudicial)

Answer 134

articles 8, 9, 10, 11 in accordance with/ prescribed by law (Sunday Times) + in pursuit of a legitimate aim (2nd part of article) + necessary in a democratic society (proportionate)

Answer 135

right to respect for private life (phsical and moral integrity) right to respect for family life home (though not the right to a home) correspondence (all forms of communication)

Answer 136

personal life - identity - dignity with care and in death - gender - sexuality - searches - surveillance - personal data family life - family settlement - immigration - marriage - civil partnership - genetics - reproductive rights home - security in one's home - prevention of intrusion and disturbance - monitoring of home - home as 'refuge' correspondence - all modern forms of communication - special issues re prisoners - legal privilege FAMILY NOW INCLUDES ALL STABLE SOCIAL UNITS

Answer 137

fundamental right -- expression is engaged in many contexts includes right to receive information too if the state seeks to restrain it, it has to comply with all 3 parts of 'qualified rights' test written and spoken word broadcasting internet cultural expression: film, plays, art, comedy journalism and confidentiality of sources

Answer 138

should also provide protection to forms of expression which "offend, shock or disturb" (Handyside v UK) Nevertheless, some forms of speech -- inciting violence and hatred -- can be restrained partly differential approach to FoE that causes cultural/religious offence and that which is politically challenging Cultural bans more easily upheld than journalists reporting on politicians/public figures note, too, strong use of margin appreciation (by ECtHR) in this area

Answer 139

Vertical effect: claim against PA by individual Horizontal effect: individual (eg celebrity) against private media which are not acting as PA so under s6(1) have no liability! - But court is a PA - Court acts as an arbiter - Court has to respect and take into account both parties rights: individual article 8 rights VS media article 10 right

Answer 140

broad contextual question depending on nature and circumstances of intrusion article 10 rights of media will be automatically engaged is article 8 engaged in this situation? requires a REP -- Reasonable Expectation or Privacy ^no longer a need to show pre-existing relationship of contract/confidence Only need both parties rights to be engaged under the convention Then court has to adjudicate between the two competing interests Usually sell evidence if media’s self-expression right has been engaged Harder to determine individual article 8 right: reasonable expectation of privacy? Then balancing exercise

Answer 141

art 8: degree of intrusion - special circumstances (age or vulnerability) - prior conduct - effect on health? Irreparable harm? art 10 - does the info contribute to public debate? - nature and form of publication - importance of information

Answer 142

review of lawfulness of gov decisions/actions by Admin Court not a form of appeal only after exhaustion of any alternatives remedies

Answer 143

amenability to JR procedural exclusivity standing time limits ouster and limitation clauses

Answer 144

issue = is the decision in question unchallengeable by / amenable to JR? (what is a public law decision?) CPR Part 54.1(2)(a)(ii) 'a claim to review the LAWFULNESS of ... a decision, action or failure to act in RELATION TO THE EXERCISE OF A PUBLIC FUNCTION' Amenability is not about where the power came from but the nature of the function of the power being carried out Ie functional test

Answer 145

Not asking if body is amenable, rather if the decision amenable therefore bodies which are not inherently amenable in nature may still be amenable due to their functions But for test: If the body had not existed, would the government have had to create one? archetypal situation: a public body exercising statutory powers = decisions made will be amenable to JR what else can give a decision sufficient public for it to be amenable to JR? -- self-regulatory bodies: do they effectively carry out public functions? R v Panel of Takeovers and Mergers ex p Datafin (cf ex p Aga Khan) -- contractual out service providers? R (A) v Partnerships in Care On going statutory under pinning?

Answer 146

is the decision in question only 'exclusively' challengeable using the JR procedure? -- O'Reilly v Mackman (1983): case struck out, strict application of "PE rule" -- acknowledgement of mixed cases eg Roy v Kensington and Chelsea FPC - flexible influence of the CPR

Answer 147

Standing = sufficient interest - Not as restrictive as directly affected under HRA - But if party is directly affected then it obvs has standing will a party be given standing to proceed from the permission stage to the main hearing? senior courts act, s31(3): "the court shall not grant leave [ie permission] unless it considers that the applicant has SUFFICIENT INTEREST in the matter to which the applicant relates"

Answer 148

'sufficient interest' demonstrated by: - expertise in issue under challenge - demonstrate interest in the matter - importance of the rule of law: it is 'vindicated' through legal scrutiny of important public law issues 'concerned citizens' eg Gina Miller (art 50) pressure/interest groups: R v Foreign Office ex p World Development Movement

Answer 149

very strict time limits purpose -- to protect interest of public bodies very little leeway allowed CPR part 54.5(1) 'a claim must be filed (a) PROMPTLY and (b) in any even NO LATER THAN 3 MONTHS after the grounds to make the claim first arose' special rules (2013) - planning 6 weeks max - procurement 30 days

Answer 150

ouster clauses = purportedly remove the courts' jurisdiction to review the use of specified powers in an Act courts see these are undermining the rule of law if limitation clause = restricted time limit: these are enforced by the courts Anisminic v Foreign Compensation Commission R (Privacy International) v Investigatory Powers Tribunal

Answer 151

JR-specific remedies - Quashing order - Prohibitory order - Mandatory order Non JR-specific - Declaration - Injunction - Damages

Answer 152

x4 errors of law errors of fact -- precedent fact -- no evidence -- established fact abuse of discretion -- relevancy -- improper purpose 'retention' of discretion -- fettering discretion -- delegation

Answer 153

public bodies can only take action/ make decisions within the powers they have been given (statutory or prerogative) = core component of ROL acting outside authority = unlawful (unless what they have done is reasonably incidental or consequent upon a power they do have)

Answer 154

Powers given to public bodies -- must be understood and interpreted properly -- misuse = unlawful subject to exceptions 1. where an error of law was not decisive to the overall decision 2. where it concerned special or arcane rules 3. where the power concerned is framed in an imprecise or highly discretionary way -- courts will not interfere (when imprecise hard for court to say what is right)

Answer 155

precedent or jurisdictional facts -- extensions of error of law/lack of authority bases of review -- public body mistaken whether actual situation gives it authority (white & collins) 'no evidence' facts - factual assertion without evidence - if acted on by public body = can be unlawful basis for exercising power

Answer 156

error made in assessment of particular situation giving rise to unfairness existing fact not fault of claimant (or advisers) established fact -- i.e. capable of objective verification mistake must have played a MATERIAL part in reasoning of public body

Answer 157

RELEVANCY - public decision makers must take into account relevant consideration - must disregard irrelevant considerations - Court decides on relevancy based on statute and circumstances - Venables v Thompson IMPROPER PURPOSE - public decision makers must use statutory powers for the purpose parliament intended them for - can be express or implied - Padfield principle

Answer 158

FETTERING OF DISCRETION - decision maker restricts their own discretion -- by not using it all (eg ex FBU) -- or by applying an overly rigid admin policy UNLAWFUL DELEGATION - decision maker should not delegate responsibility -- BUT, CARLTONA principle = recognition of modern realities: acceptable for civil servant to take decision in name of minister (s101 Local Govt Act 1972)

Answer 159

How the gov has used its powers More interventionist Courts are more conscious of their constitutional place and will vary their approach/intensity depending on circumstances substantive ground of review + basis or review + intensity of review

Answer 160

1 -- material defects in the decision-making process -- wrongly weighing up factors --irrationality, illogicality 2 -- oppressive decisions 3 -- decisions that violate constitutional principles

Answer 161

WEIGHING UP FACTORS - close connection to (crossover with) relevancy in illegality - correct factors may have been identified but court considers they have been given incorrect weighting IRRATIONALITY : failure in logical chain of reasoning by decision-maker

Answer 162

'unreasonable' decisions based on the effect or impact of them on affected party close connection with proportionality principle ex p Wheeler / Ex p Hook

Answer 163

RULE of LAW - consistency and certainty in application of the law - equality before the law TYPES of UNREASONABLE DECISION - arbitrary decisions - inconsistent and unclear

Answer 164

SUB-WEDNESBURY standard - high intensity of review - fundamental rights SUPER-WEDNESDAY standard - low intensity review - social and economic policy ECHR/EU Law: proportionality-based review

Answer 165

failure to observe procedural STATUTORY rules + common law fairness - general duty to act fairly in public law decision-making processes - rule against bias - Crossover with illegality: failure to observe procedural statutory obligations - PI is a hybrid of legality and fairness

Answer 166

Breach of PSO: was it so significant that Parliament would have intended that failure to comply would render the process unlawful? (R v Soneji) yes: decision/process quashed no: decision/process undisturbed

Answer 167

duty to act fairly - ridge v baldwin: applies in all public situations level of fairness - varies according to nature of decision/process content of fairness

Answer 168

Level of fairness: from defendant’s perspective? Subjective - Eg expectation to have license renewed as a opposed to a new applicant - Would the lack of X (eg personal meeting) have created a better process?

Answer 169

based on the appropriate level of fairness, did the failure to provide relevant processes 'rights' and opportunities justify a quashing of the overall process? examples of content of fairness - right of notice of case against you - right to call witnesses - right to legal representation - right to receive reasons for decision against you

Answer 170

Direct bias normally applies to judicial proceedings (ie being a judge in one’s own court) A pecuniary or other direct personal interest in a matter they are determining = automatic disqualification (and decision quashed) Ex p Pinochet Ugarte (re Lord Hoffman) - partial extension of principle to judicial situations where connection to a party to the proceedings (eg AI) ??

Answer 171

Made up their mind about a matter before the fact Porter v Magill '... whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the public body was biased' context - pre-formed opinion or inflexible unauthorised involvement of person in process

Answer 172

- Under s.11 POA the organisers of public processions must give advance notice of the event to the police. - The police have powers under s. 12 POA to impose conditions upon public processions - The police have the power under s. 13 POA to apply to local authorities (other than in London) for an order prohibiting public processions. - In London a prohibition order under s. 13 can be made directly by the relevant chief police officer. - In relation to public assemblies, the police have the power under s. 14 POA to impose conditions upon them. - Following the amendment of the Public Order Act in 1994, the police have powers under s. 14A to seek an order prohibiting ‘trespassory’ assemblies.