public law 1 Flashcards
what is ratio decidendi?
means ‘the reason for the decision’ - ratio is the part which is binding on other courts. it is the legal principle or rule on which the court’s decision is based, applied to the material facts of the case
what is material facts?
facts on which the decision of the court depends. if the material facts change, the courts decision might also change.
what does obiter dictum mean?
where a judge comments on an area of law, on which it is not necessary to reach a decision in the case. obiter comments are not binding, but are highly persuasive
what are the 3 exceptions in young v Bristol aeroplane for when court of appeal can depart from its own precedent?
1) CA came to previously conflicting decision
2) CA’s previous decision was overruled expressly or impliedly by Supreme court
3) CA’s previous decision was made per incuriam (not aware of a relevant authority)
what is the binding effect of CofA?
binds itself and all inferior courts
what is the binding effect of the high court?
binds all inferior courts. doesnt bind itself but only departs from own decision where convinced it was wrong.
what is the binding effect of the upper tribunal?
binds the first tier tribunal, inferior courts and itself
if there is a conflict between equity and common law - which one prevails?
equity should prevail over common law
what is the affirmative resolution procedure for statutory instruments?
requires that both Houses of Parliament must explicitly approve the SI for it to come into effect
what is the principle of “expressio unius est exclusio alterius” - when there is a list of things eg, recycle glass, paper, plastic and aluminium?
the specific mention of certain items excludes others which are not listed
what is the supreme court’s primary consideration when deciding whether to depart from its own precedent?
to avoid injustices and ensure the law evolves appropriately with societal changes (practice statement judicial precedent 1966)
what is a private members’ bill?
a bill that is introduced by MPs or lords who are not part of the government. usually debated on a Friday in House of Commons
what is a private bill?
only affects a specific group of people or locality, rather than the general public
what is a hybrid bill?
it contains elements of both public and private bills and affects the general public and specific groups of localities
what is a public bill?
bill that affects the public at large
what happens at the first reading in creating a bill?
formality - bill’s title is read out and date is set for second reading
what happens at the second reading in creating a bill?
main principles of the bill are debated by MPs
what happens at the committee stage in creating a bill (third stage)?
detail of the bill is scrutinised by a legislative committee. it may need amending
what is the report stage of creating a bill (4th stage)?
proposed amendments are debated and there is a note on the committee’s report
what is the third reading (5th stage)?
final debate and vote on the bill - If passed, it goes to the other house
what is the literal rule (statutory interpretation)?
words are given their ordinary, plain and natural meaning
what is the contemporary approach for statutory interpretation?
mixture of the literal and purposive approach = look both at the strict and superficial meaning of the words used and at the underlying purpose of the legislation, normally as a single, and largely subliminal, mental process
what is the appeals procedure from the county court?
1) county court = deputy district judge
2) county court = circuit judge
3) high court
4) court of appeal (civil division)
5) Supreme Court
what are the 3 levels of judges in the county court from least to most senior?
1) deputy district judge
2) district judge
3) circuit judge
can a case be heard via a high court judge in regional locations outside of London?
yes, and they handle a variety of cases beyond administrative and family law = this ensures accessibility and relevance to the local community
what appeals does the civil division within the court of appeal hear?
hears appeals from the high court and county court in civil matters
what does the chancery division (high court) deal with?
it deals with business, property and probate matters in the first instance
what does the kings bench division (high court) deal with?
deals with mainly civil cases through the common law business but also has some criminal jurisdiction
what are the 3 divisions of the high court?
- kings bench division
- chancery division
- family division
what are constitutional conventions?
they are unwritten rules that guide political practices and are generally followed but are not legally enforceable.
can a person who is not an MP be a key ministers (especially chancellor of the exchequer)?
no they cannot, whilst conventions are not legally enforceable, they are binding in practice and hold significant weight in maintaining the constitutional structure
what is the salisbury Addison convention?
House of Lords cannot reject at the second reading a government legislation from the House of Commons which carries out a manifesto commitment
what is the sewel convention?
Westminster parliament is not allowed to legislate on matters that are devolved to Scotland, Northern Ireland or Wales without the consent of the devolved administration
can the king refuse to dissolve parliament?
no he cannot - must act on the PMs advice and dissolve parliament
what did the changes in the constitutional reform act 2005 introduce regarding the role of the lord chancellor?
the lord chancellor is no longer the head of the judiciary and has had most of their judicial functions transferred to the lord chief justice
what is a reserved matter - in terms of devolution?
matters which are still taken by Westminster, even though they have the effect on Scotland, Wales and nether Ireland.
(immigration, defence and foreign policy are examples of this)
what are the 3 key roles of the king in terms of parliament and law making?
1) appoint the PM
2) dissolve parliament
3) give royal assent to acts of parliament
what is the royal prerogative?
powers that were once vested historically with the monarch but are not statutory powers. they are significant and still form part of the legal authority of the executive and are only exercised on the advice of the PM or other senior ministers.
king only acts on the PM’s advice
what are 4 examples of prerogative powers?
- summoning, proroguing and dissolving parliament
- appointing and dismissing government ministers
- mobilising armed forces, declaring war
- negotiation of treaties
what are the 3 components in the doctrine of collective ministerial responsibility?
1) confidentiality: duty on ministers not to disclose confidential matters
2) unanimity: all ministers should publicly agree with government policy - giving a united front (if dont think they can then they should resign)
3) confidence: government needs to ensure they have the confidence of parliament
what is the modern approach to individual ministerial responsibility doctrine? (does it place a big focus on resignation)
focuses more on accountability and addressing issues openly rather than necessarily requiring resignation.
when are the 2 key times when a minister should resign under individual ministerial responsibility?
ministers are expected to keep parliament informed and take correct actions rather than resigning unless they have:
- direct knowledge of; or
- involvement in the failure
what are the 2 key things that the ministerial code requires ministers to do?
uphold principles of integrity and accountability (including disclosing any conflicts of interests)
what are the only situations when a minister can be expelled from parliament?
committed a serious crime, perjury, fraud and corruption
what action can the parliamentary committee on standards take in response to an MP misusing public funds?
committee can order the MP to apologise publicly and recommend a suspension from the house - have the authority to recommend appropriate disciplinary actions which include ordering a public apology and recommending suspension from the house for a specified period based on the gravity of the breach
do MPs have freedom of speech during parliamentary proceedings?
yes, they have parliamentary privilege meaning they are protected from potential legal action
what are the select committee?
they hold the government to account and scrutinise the work of all government departments - they consist of MPs and/or lords from any political party
what is a negative resolution procedure for SI (statutory instruments)?
a SI doesnt need active approval by parliament. it will automatically become law unless either houses pass a motion to reject it (within 40 days)
if a judge gives their opinion publicly on a topic can they then judge a case which has that topic at the heart of it?
no they cannot because the judge’s prior public comments could indicate potential bias and undermine judicial independence.
what is the principle of judicial defence?
involves court showing restraint and respecting decision making authority of the administrative, especially in areas that require experts or involving complex policy decisions.
how does a negative instrument become law?
can become law without debate or vote in parliament
what does ultra vires mean?
outside the power, therefore, it is unlawful as has been done outside of the power given to them
can the court inquire into the proceedings in parliament?
no - this is called parliamentary privilege (the idea that the court cannot inquire into proceedings in parliament)
are judges immune from legal proceedings for actions that would otherwise be tortious?
yes they are (eg, defamation) this is only for actions that are done in their judicial capacity in court.
what is gillick competence?
minor if sufficiently mature is able to consent to their medial treatment
what are the 2 key aims of judicial review?
1) prevent abuse of power by executive
2) uphold individuals rights or interests
can the court challenge a decision that is made by a government agency related to their discretion on privacy?
principle of legality requires any government action, particularly those infringing on individual rights like privacy, must have clear statutory or other legal authority.
are MPs immune from legal action for statements made during parliamentary proceedings?
yes, to ensure freedom of speech in debates.
what is the principle of the rule of law?
all persons and authorities within the state (whether public or private) should be bound by and entitled to the benefit of laws publicly made, taking into effect the future and publicly administered in the courts
what does the De Keyser principle for prerogative powers say?
when a statutory framework exists, it takes precedence over prerogative powers in that matter.
are decisions involving national defence (high policy matters) allowed to have the court review them?
no because decisions involving national defence are considered high policy matters and are non-justiciable as they are not suitable for court adjudication
what are the 6 high policy matters (prerogative power)?
1) making of treaties
2) defence of the realm
3) mercy
4) granting of honours
5) dissolution of parliament
6) appointment of ministers (and others)
do the courts have the right to nullify a primary act of parliament?
no because this would be the complete opposite of parliamentary sovereignty (idea that acts of parliament are highest form of law and no judicial body can invalidate them)
what are the 3 key elements of parliamentary sovereignty under Dicey’s theory?
1) parliament is the supreme law-making body
2) no parliament may be bound by a predecessor or may bind a successor
3) no person or body may question the validity of an enactment of parliament
what happens if an international treaty conflicts with an act of parliament? (what takes precedence)
act of parliament is supreme and takes precedence over international treaties.
are assimilated EU case law binding on UK courts?
assimilated EU case law (including decisions of the CJEU) made before end of transition period, remain binding on UK courts
what does European Union (withdrawal) act 2018 allow for devolved legislature?
it allows devolved legislatures to amend retained direct EU legislation through primary or subordinate legislation where retained legislation falls within their devolved competence
what are the rules for people residing in the UK before the end of the transition period - can they stay in the UK?
yes - the Withdrawal Agreement ensures that the rights of Union citizens and their family members (including those yet to be born) who were residing in the UK before the end of the transition period are preserved, notably the right of settlement.
if case from magistrates is appealed by way of case stated = which court does it go to?
high court (kings bench division) as D wishes to appeal against decision of magistrates’ court on point of law via by way of case stated
when there is an overlap between a prerogative power and statute = which ones prevails?
statute prevails
