Public Law

Question 1

Derogation of an Article

Answer 1

Derogation is permitted if:
1. War or **public emergency which threatens life of nation **(NOT economic downturn); and
2. Derogation is a proportionate response (only used to extent strictly necessary)

Derogation is never allowed in relation to:
* Right to life (A2)
* Torture (A3)
* Slavery (A4)
* Retrospective Criminal Offences (A7)

Question 2

Test for standing under JR and HRA

Answer 2

HRA: C must be directly affected by the unlawful act
JR: C must have sufficient interest in the decision

Sufficient interest means able to produce eveidence of wrongdoing or pressure group with expertise and prominence.

A pressure group can only bring a claim under HRA if their own rights have been impacted (not behalf of another)

Question 3

When should a minister make a statement of compatibility

Answer 3

• Writing
• Before second reading of a Bill

If unable to do so, must explicitly state thier inability to do so (never make a statement of incompatibility)

Question 4

Limitation period for HRA claim

Answer 4

1 year of unlawful act (unless exension granted on equitable grounds)

Question 5

Court obligation in relation to ECtHR decisions

Answer 5

UK Court must take into account ECtHR judgment but MAY depart if it woudl conflict with a fundamental feature of domestic law

(i.e. mirror principle is not followed strictly)

Question 6

When will a private company be considered a ‘functional’ public authority under HRA?

Answer 6

1. Performing a public function
2. Complying with statutory obligations

Question 7

Test and effect of direct bias in judicial review

Answer 7

Direct Bias: Decision maker has a financial interest in the outcome of the decision (actual influence does not need to be proven / size of interest is irrelevant)

Effect: Decision is automatically invalidated

Question 8

Effect of a Declaration of Incompatibility on remedy

Answer 8

C will not obtain a direct remedy because the public authority’s statutory defence remains operative (i.e. PA has a statutory defence)

Question 9

Appeal process from County Court

Answer 9

DDJ or DJ –> CJ in CC
CJ –> High Court (as of right)

Question 10

How would you ascertain from an Act if it expressly repeals any earlier statutes

Answer 10

Schedule

Question 11

Is the high court binding on itself?

Answer 11

No

Question 12

Permissions to appeal from HC to CoA

Answer 12

CoA only (High Court cannot permit)

Question 13

Which judge hears murder case?

Answer 13

High Court Judge in CC

Question 14

When is a quashing order or mandatory order more appropriate?

Answer 14

Quashing Order: PA has made a decision which is wronog

Mandatory Order: forces PA to to make a decision again

Usually Quashing Order (to set aside) and Mandatory ORder (re make decision) are made together

Question 15

When might a remedy for JR be refused?

Answer 15

Remedies are disccretionary. therefore, may be refused even if C has followed all correct procedures. The grant is subject to the court being satisfied there is no good reason for its refusal

Question 16

What test will the court apply when considering whether to permit a JR claim?

Answer 16

1. Standing (sufficient interest)
2. Within time (3 months (6 weeks if planning))
3. No suitable alternative remedy
4. Arguable case

Question 17

Can housing possession engage Article 8?

Answer 17

Yes, if LL is a PA (if so, court will consider proprotionality of interference before granting possession)

Question 18

Involvement of next in kin following death in state hands

Answer 18

Obligation to hol an investigation. Next of kin must be involved in the procedure to the extent necessary to safeguard their legitimate interest

Question 19

Police powers to detain all present

Answer 19

POlice cna detain everyone where reasonable expectation a breach of the peace is imminent (major disorder)

Question 20

What are Puisne Judges

Answer 20

Lowest rank of superior court judges (soliciotr or barrister)

Question 21

Where may CJ sit?

Answer 21

Crown Court and County Court

Question 22

When would a Legislative COnsent Motion be appropriate?

Answer 22

Require consent of devolved nation before passing legislation in westminster relating to a devolved matter.

Question 23

limits of privilege

Answer 23

• expenses
• contempt of parliament (knowingly lie)

Question 24

Constitutional Conventions

Answer 24

Not legally enforceable
May be recognised by the courts

Question 25

Individual Ministerial Responsibility

Answer 25

Minister is responsible for actions of civil servants. But, there should be causal relationship between minsiter and actions of civil servant for minister to be held responsible (e.g. based on policy decision, instruction, knowledge of issues leading to mistake) - therefore, may not be held reponsible. If Minsiter is responsible, should resign.

ALWAYS held accountable to parliament (provide full and accurate answers).

Question 26

Leapfrog procedure

Answer 26

1. Point of law of general public importance +
2. Decision is of significance OR it raises issues of national importance OR benefits of early consideration by SC outweigh benefits of consideration by CoA (serious health issues are not good reason)

NOTE: High Court –> SC (skips CoA)

Question 27

Civil Legal Aid Means Test

Answer 27

Disposable Income: £733 or less
Gross Income: £2,657 or less
Disposable Capital: £8,000 or less

Question 28

Summary judgment test

Answer 28

1. No real prospect of success; AND
2. No other compelling reason for trial

Unlikely suitable if:
* complex issues which need investigating, difficult questions of law,
* highly technical nature,
* the need to hear from witnesses (e.g. dispute over oral contract).

Question 29

Notice period for procession

Answer 29

6 clear days before date of intended procession