Public Law

Question 1

What is a Public Bill?

Answer 1

Bills that affect the public interest and the general public at large. All government Bills are classified as public Bills.

Question 2

What is a Private Bill?

Answer 2

Bills that affect private interests are brought to Parliament by the organisation or individual that wants to change the rules that apply to them or to ask for new powers and are effectively private legislation.

Question 3

What is a Hybrid Bill?

Answer 3

A mix of a Bill of public interest and private interest. Example: High Speed Rail (West Midlands-Crewe) Act 2021.

Question 4

What are the Stages of primary legislative process?

Answer 4

1. First reading
2. Second reading
3. Committee stage
4. Report stage
5. Third reading

Question 5

What is the difference between primary and secondary legislation?

Answer 5

Heydon’s Case
1. Primary - acts of Parliament
2. Secondary - made under powers granted by Parliament, typically ministers. Also is not subject to the same parliamnetary scrutiny.

Question 6

When should the mischief rule be applied?

Answer 6

1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What remedy for the mischief had Parliament intended to provide?
4. What was the true reason for Parliament adopting that remedy?

Question 7

What is the definition of the Golden Rule?

Answer 7

River Wear Commissioners v Adamson
…giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could bot have been to use them in their ordinary signification.

Question 8

What is Expressio unius est exclusio alterius?

Answer 8

The expression of one thing is to the exclusion of another

List of items with no general words that follow (closed list) - Tempest v Kilner

Question 9

Ejusdem generis

Answer 9

Of the same kind

Generic non-exhaustive list of items, where general words follow a list of specific words, the general words are interpreted so as to restrict them to the same kind of objects as the specific words.

Powell v Kempton Racecourse

Question 10

Noscitur a sociis

Answer 10

A word is known by its associates.

Similar to ejusdem generis, but used in wider situations to also interpret specific words not just the general words.

Inland Revenue Commissioners v Frere (annual interest, annual annuities and other annual payments.)

Question 11

Seven chambers of first tier tribunals?

Answer 11

1. War Pension and Armed Forces Compensation Chamber
2. Social Entitlement Chamber
3. Health, Education and Social Care Chamber
4. General Regulatory Chamber
5. Tax Chamber
6. Immigration and Asylum Chamber
7. Property Chamber

(Employment tribunal - not a chamber)

Question 12

Upper Tribunal Chambers

Answer 12

1. Administrative Appeals Chamber (War Pensions and Armed Forces Compensation Chamber; Social Entitlement Chamber; Health, Education and Social Care Chamber; and General Regulatory Chamber)
2. Tax and Chancery Chamber (Tax Chamber)
3. Immigration and Asylum Chamber (Immigration and Asylum Chamber)
4. Lands Chamber (Property Chamber)

Question 13

What is the purpose and function of the Coroner’s Court?

Answer 13

Coroners investigate all deaths where the cause is unknown, or where there is reason to think it was not due to natural causes (inquests)

Juries will be convened to decide the cause of death in some cases, notably when the deceased died in state custody.

Question 14

What is a public inquiry?

Answer 14

Investigations commissioned by government departments are given special statutory powers to come l testimony and release of other forms of evidence.

Inquiries Act 2005 - condition for an inquiry
1. Legal powers to compel witnesses to give evidence.
2. Legal safeguards and procedures
3. Statutory framework for appointment of a chair and other inquiry personnel, the taking of evidence, and production of a report and recommendations.

Question 15

What are the divisions of the High Court?

Answer 15

1. Queen’s Bench Division
2. Chancery Division
3. Family Division

Question 16

How are High Court Judges appointed?

Answer 16

Norminally appointed by the King on the recommendation of the Lord Chancellor, after a fair and open competition administered by the Judicial Appointments Commission.

Eligibility:
seven-years basis or be circuit Judge who have held office for at least two years.

Question 17

How are High Court Judges addressed?

Answer 17

The “Honourable” (Prefix), Mr/Mrs/Ms Justice [Surname] (Verbally) and “[Surname] J” (Written)

Question 18

What is the role of the “Masters”?

Answer 18

Procedural judges - they deal with all aspects of legal proceedings, from its issue until it is ready for trial by a trial judge – usually a High court judge. After the trial, the Master resumes responsibility for completion of the case.

Question 19

What cases does the Queen’s Bench hear?

Answer 19

Mainly a civil, but also handles criminal cases (Administrative Court)

1. Wrong against he person (defamation + libel)
2. Wrong against property (trespas)
3. Wrongs which may be against people or property (negligence or nuisance)
   (4.) judicial review cases.

Question 20

What cases does the Administrative Court hear?

Answer 20

Part of the QB - responsible for administrative law jurisdiction of EW.

Lawfulness of actions of central and local government, regulatory and disciplinary bodies, inferior courts and tribunals, and other public bodies and officials exercising public functions.

Question 21

What cases does the Chancery Division hear?

Answer 21

Mainly deals with business and property cases. (also Insolvency and Companies court and the Patens court and the Intellectual Property Enterprise Court

Head of the Chancery Division is the Chancellor of the High Court.
- 18 High court judges attached to the Division - with additional six judges referred to as Masters (one of whom is the chief Master) and six insolvency and Companies Court Judges (one of whom is the Chief Insolvency and Companies Court Judge)

Question 22

What cases does the Family Division hear?

Answer 22

Hear all cases relating to children and have exclusive jurisdiction in wardship – a type of court order which gives custody of a minor (under 18) child to the court, with day-to-day care carried out by an individual(s) or local authority.

Question 23

What is the mode of address of Court of Appeal Judges?

Answer 23

Lord/Lady Justice [surname] (verbal), and [surname] LJ (written)

Question 24

What is the ordinary composition of the Court of Appeal?

Answer 24

1. Head of the Division (Lord Chief Justice of EW. the Mater of the Rolls, the President of the QB, the President of the Family Division and the Chancellor of the High Court)

Question 25

Who heads the CoA Civil Division and how many judges hears cases?

Answer 25

The Master of the Rolls - three judges consisting of any combination of the Heads of division and Lord Justices of Appeal.

Question 26

Who heads the CoA Criminal Division

Answer 26

Lord Chief Justice - three judges consisting of the Lord Chief Justice or the President of the Queen’s Bench Division or one of the Lords Justices of Appeal, two High court Judges, or one High court Judge and one specially nominated Senior Circuit Judge.

Question 27

How many UKSC Justices are there?

Answer 27

twelve - Justices

Lord/Lady [surname] - the nominated senior judge is known as the President.

Question 28

When can an appeal be heard in UKSC?

Answer 28

Permission to appeal is required and will only beb granted if the issue raised is of ‘general public importance’.

Question 29

What is a ‘leapfrog’ procedure?

Answer 29

A leapfrog procedure refers to when an appeal bypasses the Court of Appeal to the UKSC directly. (s 12-16 Administration of Justice Act 1969)

Question 30

What is the Royal Prerogative and what are some examples of prerogative powers?

Answer 30

The powers nominally invested in the monarch do not require the consent of Parliament to be exercised.

Examples include:
1. Summoning and proroguing Parliament
2. Give Pardons
3. Issue passports
4. Mobilise the armed forces and declare war
5. Negotiate treaties

Question 31

What is the definition of a ‘constitution’?

Answer 31

‘That set of rules which directly or indirectly affect the distribution and exercise of sovereign power in the state.’ (Dicey)

Question 32

What is the convention that House of Lords should not reject at second reading of any government legislation that has been passed by the House of Commons which carries out a manifesto commitment?

Answer 32

Salisbury-Addison convention

Question 33

What is the convention that Westminister Parliament will not normally legislate with regard to devolved matters in Scotland, Wales or Northern Ireland without the consent of the devolved administration?

Answer 33

Sewel convention

Question 34

What are the twin ministerial responsibility conventions?

Answer 34

Collective ministerial responsibility and individual ministerial responsibility.

Collective ministerial responsibility:
1. Discussions between ministers should remain confidential.
2. Once the policy line has been reached by ministers, all ministers must stick to it and maintain a united front (‘unanimity’).

Individual ministerial responsibility (resignation due to failures in department):
1. the degree to which the minister was personally aware of/involved in/responsible for the mistake or failing - Maxwell-Fyfe guidelines (Crichel Down affair).
2. Whether the failing was an operational one (considered to be the fault of the civil servants or other government agency involved) or a policy one (considered to be a ministerial responsibility).

Ministers ought to resign if there has been a significant policy failing but this convention is very much impacted by short-term political considerations.

Question 35

What are the conventions relating to the judiciary?

Answer 35

1. Judges must not be politically active.
2. Parliament must not criticise the professional conduct of judges.

Question 36

What was decided in Shaw v DPP?

Answer 36

Courts had ‘residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state’.

Question 37

What were the three reasons Lady Hale gave that the UKSC has ‘become the guardians of the United Kingdom constitution”?

Answer 37

1. The Justices rule on the validity of laws passed by the devolved legislatures in Scotland, Wales and Nothern Ireland.
2. They restrict the government to the exercise of powers within the limits that Parliament has set; ‘this is nothing new. The higher courts have been doing this for centuries […] in this we see ourselves as servants of the sovereign legislature’.
3. They ‘protect the fundamental rights of individuals against encroachment by the State’.

Question 38

What two key points about judicial law-making did Gillick v West Norfolk Health Authority illustrate?

Answer 38

1. Judges in the senior courts are often required to make decisions in the absence of any explicit statutory or common law authority.
2. A feature of common law is that it develops with the changing political and cultural climate.

Question 39

What is meant by judicial ‘activism’ and ‘deference’?

Answer 39

Judicial activism - means the courts tendency to create rights.

Judicial deference - ‘No new right in the law, fully-fledged with all the appropriate safeguards, can spring from the head of a judge deciding a particular case: only Parliament can create such a right.’ (Sir Robert Megarry VC)

Question 40

What are the six devolved legislatures and administrations?

Answer 40

The Scottish Parliament
The Scottish Government

The National Assembly for Wales
The Welsh Government

The Nothern Ireland Assembly
The Northern Ireland Executive

Question 41

What are devolved and reserved matters?

Answer 41

Devolved matters = areas of government where decision-making has been delegated by the UK Parliament to a devolved administration. (environment)

Reserved matters are decisions still taken by Parliament at Westminister, even though they have effect in Scotland, Wales and Northern Ireland (immigration, defence and foreign policy)

Question 42

How is funding for devolved administrations determined?

Answer 42

By ‘spending reviews’ scrutinised by Parliament

Question 43

What is the Memorandum of Understanding 2012 and which devolved institutions does it regulate?

Answer 43

All devolved administrations.

Non-legally binding principles underlie relations between the administrations. Headed by the Joint Ministerial Committee.

• To consider non-devolved matters impinge on devolved responsibilities and vice versa.
• to discuss the respective treatment of devolved matters within their administrations.
• To keep the arrangements for liaison between the UK Government and devolved administrations under review.
• To consider disputes between the administrations.

Question 44

What is the general rule of Act of Parliament to Scotland?

Answer 44

Act only extend to Scotland if they deal with non-devolved or ‘reserved matters’. (e.g. immigration)

Question 45

What is the general rule of Act of Parliament to Welsh jurisdiction?

Answer 45

The general rule is that Acts of Parliament will only apply to Wales if they deal with reserved matters.

Question 46

What tests are used to determine if Acts of UK Parliament/evolved legislation has legal effect?

Answer 46

1. Which of the devolved administrations is in issue?
2. What matter or area does the legislation concern?
3. Is that matter listed as a ‘reserved matter’ in the relevant Act?
4. If so, then legislation passed by the UK Parliament will have legal effect; or
5. If the matter is not deemed as a ‘reserved matter’, legislation passed by the UK Parliament will still have legal effect in the devolved administration.

Question 47

What are the eight principles outlined in Lord Bingham’s work ‘The Rule of Law’?

Answer 47

1. The law should be accessible, clear and predictable.
2. Legal issues should ordinarily be resolved through legal processes and not through the exercise of administrative discretion by government officials.
3. The law should apply equally to all
4. The law should afford adequate protection for human rights.
5. The law should afford access to justice in the courts without inordinate delay or expense.
6. Public officials, including ministers, should exercise the powers they have been granted in good faith and within the limits of those powers.
7. Legal and adjudicative processes should be fair.
8. The state should comply with its obligations under international law.

Question 48

What is the intra vires doctrine and what is the key considerations?

Answer 48

The government must respect and act within the confines of the law.

Three key considerations:
1. Any government interference with persons or property must be sanctioned by a legal authority (whether in statute or the common law), giving an identifiable power to perform the action in question – this power must be exercised in a lawful manner. (Entick v Carrington)
2. The presumption, when interpreting statues, is that Parliament cannot be seen to have intended to restrict important rights and freedoms unless this is made clear. (legality principle - ex p Simms).
3. the independence of the judiciary is essential in this respect, because the courts determine whether government power is lawfully exercised, i.e. has been exercised within the powers given to it and is not used in an arbitrary way. The mechanism for ensuring this judicial review.

Question 49

What types of Acts can Administrative Courts review?

Answer 49

Primary legislation - No, unless the JR concerns the exercise of or duties under the Act (ultra vires doctrine)

Delegated legislation - The courts can review the legality of delegated legislation, by assessing whether it has been made in accordance with the powers granted by the parent Act.

Common law and prerogative power - The courts can assess whether the government has breached a common law constitutional right (e.g. the right of protest) or has lawfully exercised a prerogative power.

Question 50

What is the three basic rules of Parliamentary Sovereignty?

Answer 50

1. Parliament is the supreme law-making body. (no subject limitations (ex parte Simms), no geographical or temporal limitations (Mortensen v Peters)
2. No Parliament may be bound by a predecessor or may bind a successor. (express (WA 2018) or implied repeal (Vauxhall)
3. No person or body may question the validity of an Act of Parliament. Enrolled Bill rule (Edinburgh and Dalkeith Railway + Pickin v British Railways Board) = ‘When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the courts, there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the Statute Book at all.

Question 51

What did Lord Hope state (obiter) about Parliamentary Sovereignty?

Answer 51

“Our constitution is dominated by the sovereignty of Parliament. But PS is no longer, if it ever was, absolute. … It is no longer right to say that its freedom to legislate admits of no qualification whatsoever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.”

Question 52

What is the general position of the courts regarding ouster clauses?

Answer 52

The courts’ attitude towards ouster clause is generally hostile (anisminic), however, may accept partial ouster clauses with a defined limitation period.

Question 53

What are the five main preliminary issues to consider before pursuing a judicial review claim?

Answer 53

1. Amenability
2. Procedural exclusivity
3. Standing
4. Time limits
5. Ouster clauses

Question 54

What did the case Datafin decide about the principle of amenability?

Answer 54

Decisions should be amenable to judicial review is the public body is performing a ‘public law function’.

Lloyd LJ further states that ‘If the source of power is a statute… then clearly the body in question will be subject to judicial review… if the body is exercising a public law function, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review’.

Question 55

Are Self-regulating authorities amenable to JR?

Answer 55

Yes, ASA ex parte Insurance Services held that self-regulatory authorities are subject to review.

However, not if the powers exercised are not prima facie related to government services or are private rights. (ex parte Aga Khan)

Question 56

What is meant by the term ‘contracting out’ and what is its significance in terms of amenability?

Answer 56

‘Contracting out’ means the delegation of public functions to private companies.

The test is whether the powers exercised are purely contractual not subject to ongoing statutory controls (ex parte Goldsmith) or if there is a ‘statutory underpinning’ (Partnerships In Care).

Question 57

What is meant by procedural exclusivity and how is procedural exclusivity determined?

Answer 57

O’Reilly v Mackman; Cocks v Thanet
1. Judicial review was the exclusive procedure for challenging public law decisions.
2. Private law matters were to be dealt with by ordinary action.
3. To bring a public law challenge in any other way than by JR would amount to an abuse of process of the court.

Question 58

What are the exceptions to the procedural exclusivity rule?

Answer 58

Two exceptions:
1. When neither party objected to the use of private law procedure; and
2. when the contested decision was collateral - arose out of or incidentally to some other legal claim.

Question 59

What is required to satisfy the ‘Standing’ requirement?

Answer 59

The Senior Courts Act 1981, s 31(3).
- ‘No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with the rules of court…’
‘… the court shall not grant leave unless it considers that the applicant has sufficient interest in the matter to which the application relates.’

Question 60

What did the case of ‘Fleet Street Casuals’ illustrate about the Standing requirement?

Answer 60

Lord Scarman:
- ‘It is wrong… for the court to attempt an assessment of the sufficiency of an applicant’s interest without regard to the matter of his complain. If he fails to show, when he applies for leave, a prima facie case, or reasonable grounds for believing that there has been a failure of public duty, the court would be in error if it granted leave.’

Examples of interested parties with standing:
1. Associations and representative groups. (ex parte Liverpool Taxi Fleet Operators’ Association)
2. Pressure and interest groups.
3. ‘Concerned citizens’. (Rees-Mogg - ‘sincere concern’)

Question 61

What is the time limit for a general judicial review application?

Answer 61

CPR Part 54.5(1)
- ‘a claim must be filed (a) promptly and (b) in any event no later than 3 months after the grounds to make the claim first arose’.

Question 62

What is the time limit for planning decisions and public procurement after 2013?

Answer 62

Six weeks and 30 days respectively.

Question 63

What was decided in R (Cowl) with regard JR procedure?

Answer 63

Claimants must exhaust any alternative remedies in order to proceed with JR procedure, including any action to avoid litigation wherever possible.

Question 64

What are the two stages for JR application prescribed in CPR Part 54?

Answer 64

1. ex parte application for permission must be made to the Administrative court or relevant Tribunal.
2. The full inter partes hearing (i.e. involving both sides)

Question 65

What are the six remedies for JR?

Answer 65

1. Quashing order (overturning decision)
2. Prohibitory order (order to stop public body from acting or continuing to act unlawfully)
3. Mandatory order (order to perform statutory duty)
4. Declaration
5. Injunction (orders a party to perform, or refrain from performing, a specific act.
6. Damages (if either (I) the court is satisfied that damages could have been awarded in an private law action or (ii) the public body has breached its duties under the HRA 1998).

Walton v Scottish Ministers = remedies are discretionary

Question 66

What is meant by ‘illegality’ as a ground of review?

Answer 66

To control the exercise of power within limits conferred to the Executive, normally prescribed by the governing legislation.

GCHQ
-‘By “illegality” as a ground for judicial review, I mean that the decision-maker must understand correctly the law that regulates his decision-making powers and must give effect to it.’

Question 67

What are the five sub-categories of illegality?

Answer 67

1. Simple illegality (ultra vires).
2. Errors of law.
3. Errors of fact.
4. Abuse of discretion.
5. Retention of discretion.

Question 68

What is the position with regard to simple illegality?

Answer 68

AG v Fulham - must be a clear that the Act seeks to empower the authority to exercise for a specific purpose and way.

London & North West Railway - a power to build public lavatories could also be used to build a subway under a read that was necessary in order to access those lavatories.

Principle of legality - ex parte Witham = Parliament is presumed to not intend to authorise the infringement of fundamental or ‘constitutional’ rights and cardinal principles of the rule of law unless it had given very specific statutory authorisation.

Question 69

What is the position of ‘Errors of Law’ doctrine and are there any exceptions?

Answer 69

When the decision-maker has misinterpreted the meaning of words in a legislative provision.

Yes - ex parte Page.
1. Where the error of law is not decisive to the decision. By ‘decisive’, it is meant that, but for the error concerned, the decision would have been different.
2. Where the decision-maker is interpreting some special system of rules, courts are often unwilling to intervene. Also application for judicial review of a superior court is treated cautiously (Re Racal Communications Ltd)
3. Where the power is granted is so imprecise that it is capable of being interpreted in a wide range of different ways, the courts will not necessarily quash a decision just because they would have come to a different view from that of the decision-maker on what the law requires. (ex parte South Yorkshire Transport Ltd)

Question 70

What are the three grounds of ‘Errors of Fact’?

Answer 70

1. Precedent Facts.
2. No evidence for a Fact.
3. Ignorance or Mistake of an Established Fact.

Question 71

What is the function of the Precedent Facts in establishing Errors of Fact?

Answer 71

Where the exercise of decision-makers’ power to decide a particular matter is contingent of making an initial finding of fact.

White and Collins (compulsory purchase of lands (land not being parkland); ex parte Khawaja (review to establish if the person was ‘an illegal entrant’)

Question 72

What is the function of ‘No Evidence for a Fact’ in establishing Errors of Fact?

Answer 72

If a finding of fact, on which a decision is based, is supported by no evidence at all, the courts can overturn a decision based on it.

Coleen Properties
- Compulsory purchase of a property, as the local authority wanted to re-develop the adjacent area. An inspector’s report had stated that it was not ‘reasonably necessary for the satisfactory development or use of the cleared area to acquire the property’.

Question 73

What is the function of ‘Ignorance or Mistake of an established Fact’ in establishing Errors of Fact?

Answer 73

Tameside
- Factual mistake could be a ground of judicial review if the ‘misunderstanding or ignorance of an established fact ‘ (Scarman LJ, CoA) or acts ‘upon an incorrect basis of fact’ (Lord Wilberforce, HL).
- ‘If a judgement requires… the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, and whether the judgment has not been made upon other facts which ought not to have been taken into account.’

E v SSHD
Carnwarth LJ four-part test:
1. Mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter.
2. The fact or evidence must have been established in the sense that it was uncontentious and objectively verifiable.
3. The appellant (or his advisors) must not have been responsible for the mistake.
4. The mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.

Question 74

What is ‘Abuse of Discretion’ and what are the elements?

Answer 74

Abuse of discretion concerns the decision-maker misusing their statutory power in one of the following ways:
1. Failing to take a relevant consideration into account OR taking an irrelevant consideration into account.
- Fewings = three kinds of considerations, which may present themselves to a decision-maker: (I) clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had (mandatory factors); (II) those clearly identified by the statute as considerations to which regard must not be had (prohibitory factors); (III) those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so (discretionary factors).

see also Venables and Thompson

2. Using the power for an improper purpose.
   - The decision-maker acts illegally if it uses the powers for a different purpose.
   - Padfield - ‘The minister’s discretion… must be conferred from a construction of the Act read as a whole, and for the reasons I have given it would infer that the discretion… has been used by the Minister in a manner which is not in accordance with the intention of the statute which conferred it.’

Question 75

What is ‘Retention of Discretion’ and what are the two grounds?

Answer 75

If given discretionary powers, decision-makers must exercise that discretion and not ‘fetter’ or restrict themselves.
1. Fettering of discretion
- When a public body has acted in a way that hampered its own ability to exercise discretionary power properly. (ex parte Fire Brigades Union - SS cannot bind itself to not exercise its discretionary power)
- However, policies of fettering discretion is allowed (ex parte Brent = ‘The Minister is entitled to have in mind his policy. To this extent the reference to keeping an open mind does not mean an empty mind. His mind must be kept ajar.’)

2. Unlawful Delegation of Discretion
   - Where the decision-maker has delegated its discretion to someone else contrary to the intention of Parliament. (Lavender = minister can wrongly delegate to another)
   - Carltona = where discretion is conferred on a government minister the courts will presume, in the absence to the contrary, that the minister is allowed to delegate his or her discretion to officials (civil servants) within the department, even if the statute does not expressly say so.

Question 76

What is required for JR under unreasonableness?

Answer 76

Wrenbury?
- ‘A person… must, by the use of his reason, ascertain and follow the course which reasons directs. He must act reasonably.’

Question 77

What is the Wednesbury test?

Answer 77

‘a decision on a competent matter is so uinreasonable that no reasonable authority could ever have come to it’.

Question 78

What did the case of GCHQ attempt to change about Wednesbury ‘unreasonableness’?

Answer 78

Lord Diplock preferred the term ‘irrationality’ to screibe unreasonableness as ‘It applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’

Question 79

What are the three classes of unreasonableness identified in the case of De Smith & Jowell?

Answer 79

1. Material defects in the decision-making process.
   - Wrongly weighing up relevant factors.
   - Failure to provide a comprehensive chain of reasoning: ‘irrationality’.
2. Oppressive decisions.
3. Decisions that violate constitutional principles.

Question 80

What is required for JR for procedural impropriety?

Answer 80

1. Failure to observe procedural statutory rules.
2. Duty to act fairly (common law fairness).

Question 81

What is the Modern approach to establish procedural statutory rules?

Answer 81

R v Soneji = judiciary now focus on the consequences of non-compliance with the statutory requirement.
JN (Cameroon) v SSHD = failure to identify a country on the notice did not invalidate the decision to deport him. The purpose of the requirement was to assist the person concerned in relation to any appeal, and JN’s ability to present his appeal was not impaired by the failure to state the destination.

Question 82

What is the Duty to act fairly (common law fairness) and what are the two central common law rules?

Answer 82

1. When does the duty to act fairly arise?
2. What level of duty to act fairly is owed by the decision maker?

Two central common law rules:
1. The right to be heard.
2. The rule against bias.

Question 83

What is the JR ground of Legitimate Expectations?

Answer 83

Schmidt v SSHA
- ‘… an administrative body may, in proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.’

Question 84

What is the two primary forms of Legitimate Expectations?

Answer 84

1. Procedural Legitimate Expectation.
   a) a public body has promised or represented that a particular procedure will be followed before a decision is made.
   b) where there has been an established practice for the public body to use a particular procedure.
2. Substantive Legitimate Expectation.

Question 85

What is the Courts’ approach to assessing legitimate expectation?

Answer 85

1. Has an expectation arisen?
   - ‘Legitimate… expectation my arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.’
   a) Express promise:
   - Specific representation
   - Representation in policy

b) Established past practice:
- An expectation can also arise from an established practice or settled course of conduct by the public body towards the claimant, or towards a class of persons to which the claimant belongs.

2. If so, is the expectation legitimate?
   - Coughan: ‘This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.’
   - clarity, legality, agency, knowledge and reliance.
3. Has the public body lawfully frustrated the legitimate expectation?

Question 86

What is the definition of a ‘public procession’?

Answer 86

section 11
a) to demonstrate support for or opposition to the views or actions of any person or body of persons,
b) to publicise a cause or campaign, or
c) to make or commemorate an event, unless it is not reasonably practicable to give any advance notice of the procession.

section 16 - ‘public’ means that the procession must take place ‘in a public place’.

Question 87

What is the required advanced notice that the organisers of public processions, and what is the penalty?

Answer 87

Section 11(7), six clear days’ notice of the date, time and route of the procession. Failure to do so amounts to an offence.

Question 88

Under which circumstances can the police impose conditions upon a public procession?

Answer 88

A senior police officer can impose conditions if he reasonably believes that–
a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or
b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do.

The condition will be those that appear necessary to the senior officer to prevent such disorder, damage, disruption or intimidation.
1. The term ‘senior police officer’ is defined in s 12(2).
2. Section 12(3) stipulates that, where a condition is imposed in advance of the procession, it must be in writing.

Question 89

What are the offences and defences contained in s 12, Public Order Act?

Answer 89

(4) A person who organises a public procession and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control.
(5) A person who takes part in a public procession and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstance beyond his control.
(6) A person who incites another to commit an offence under ss (5) is guilty of an offence.

Question 90

What are the sanctions of a breach of s 12 Public Order Act?

Answer 90

(8) A person guilty of an offence under ss (4) is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale or both.
(9) A person guilty of an offence under ss (5) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(10) A person guilty of an offence under ss (6) is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale or both.

Question 91

What powers does the Chief Police Officer have to apply for a prohibition order from the local authority?

Answer 91

Under Section 13(1), the CPO has the power if he ‘reasonably believes that, because of particular circumstances existing in any district or part of a district, the powers under section 12 will not be sufficient to prevent the holding of public processions in that district or part from resulting in serious public disorder…’

• cannot exceed 3 months.
• local authority will be required to obtain the consent of the Home Secretary (s 13(2)).

Question 92

Where does s 13(1) POA not apply?

Answer 92

Does not apply to processions in London.

Section 13(4) POA provides that a prohibition order can be made by the Commissioner of Police for the Metropolis (or the Commissioner of Police for the City of London) if they reasonably believe that, as with s 13(!), orders under s 12 will not be sufficient to address concerns over serious public disorder in their police area.

Question 93

Can a prohibition order be challenged by applying for JR?

Answer 93

Yes, Kent v Metropolitan Police Commissioner.
- must be reasonable grounds for making the order.
- reflects the unwillingness of the court to disturb operational decisions, seen to be within the core competence of the police, in relation to matters of public safety and security.

Question 94

What is the definition of ‘public assemblies’

Answer 94

s 16 - a public assembly is a meeting comprising of two or more persons in a public place that is wholly or partly open to the air.

Question 95

Can the Police impose conditions upon public assemblies?

Answer 95

Yes, s 14(1) allows conditions to be imposed if the senior police officer reasonably believes that–
a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or
b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do.

S 14(1) conditions are limited to the place, duration, and maximum number of attendees for an assembly. Must be necessary to the senior office to prevent disorder, damage, disruption (s 14(1)(a)) or intimidation (s 14(1)(b)).

Question 96

What is meant by ‘trespassory assembly’?

Answer 96

It is an offence under s 14A where a trespassory assembly (consisting of 20 or more persons (s 14(9)) is held ‘at a place or on land to which the public has no right of access or only a limited right of access’ (s 14A(1)).

Question 97

When can the Chief Police Officer apply for a prohibition order form the local authority?

Answer 97

When the Chief Police Officer reasonably believe a trespassory assembly is intended to be held, and that the assembly:
(a) is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any permission of his or the limits of the public’s right of access, and;
(b) may result–
(i) in serious disruption to the life of the community, or
(ii) where the land, or a building or monument on it, is of historical, architectural, archaeological or scientific importance, in significant damage to the land, building or monument.

Question 98

What is the rule of statutory interpretation contained in the case Pepper v Hart?

Answer 98

A court may refer to reports in Hansard as extrinsic aids to interpretation when appropriate. The court may make reference to a report of such proceedings published in Hansard provided certain conditions are fulfilled, including that the statements relied on in Hansard must themselves be clear.

Question 99

What is the procedure to become first minister of the Senedd?

Answer 99

Nominated by the Senedd with a majority and then being recommended to the Queen for appointment.

Question 100

What is the first step to challenging a decision made by the government on a hearing without notice?

Answer 100

The correct step required by the CPR pre-action protocol relating to judicial review is to write to the relevant government minister setting out the client’s concerns and intentions.

Failure to comply with the pre-action protocol could affect the outcome of the application although paragraph 6 does provide that this may not be appropriate in very urgent cases.