Public Law 2 Flashcards by Matt Mcrobie

What is J. Finnis’ definition of the rule of law

“The name commmonly given to the state of affairs in which a legal system is legally in good shape”

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What are the two core things the rule of law requires

A system where everyone - including the government - is bound by law
A system where no-one - including the government - has unlimited/unconstrained power

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What do formal theories of the rule of law include

They are concerned with the form and structure of a legal system only

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What do substantive theories of the rule of law include

They are concerned with the form and structure of a legal system, as well as the substance (laws) within the system

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Who is a formalist in the context of the rule of law

Joseph Raz

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Who is substantive in the context of the rule of law

Lord Bingham

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Do the courts endorse substantive theories?

Yes (or at least they have done)

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What is an exmaple of when the courts have endorsed the substantive theory

R (Al-Rawi and Others) v Secretary of state for foreign and commonwealth affairs [2006]

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What are the two sources of executive power

Statute
Royal Prerogative

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What is an example of the courts interpreting acts to uphold rule of law standards

Anisminic [1969]

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What is judicial review, according to Elliot and Varuhaus?

“The principle court-based mechanism by which the legality of public authorities’ actions may be adressed”

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What happens in judicial review

The lawfulness of the decisions of public authorities are challenged

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What are the 4 main grounds for judicial review

illegality
irrationality
procedural improriety
violation of convention rights

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When will judges be needed for judicial review

When all internal processes have been exhausted

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What is the difference between substantive and procedural unfairness

Procedural - “the way this policy was made was unfair”
Substantive - “This policy is unfair”

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Who decides the limits of a power?

The courts

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What does fettering a decision mean?

When public bodies are given a power, they are required to exercise discretion and cannot adopt a set of rigid rules

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Can a public body pass its decision making powers to anyone else?

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What are the two circumstances when discretion may be used

for proper purposes
on the basis of relevant considerations

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is royal prerogative subject to judicial review?

yes

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What case showed that royal prerogative is subject to judicial review?

Council of civil service unions v Minister for the civil service [1985]

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can acts of parliament be judicially reviewed?

no, due to the doctrine of parliamentary sovereignty

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What are the three things required for procedural fairness?

requires a decision maker to take the steps that are suited to making a good decision
requires actions that promote responsible decision making
requires those things to be done by people who can be seen by a reasonable observer to be unbiased

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What are the three types of case, according to McInnes v Onslow-fane [1978]

Forfeiture cases
expectation cases
application cases

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what is a forfeiture case

where the decision takes something away from someone

what is an expectation case

where someone is refused something he had a legitimate expectation of being granted

what is an application case

Where something is simply refused

is there a general right to a hearing?

yes

is there a general right to an oral hearing?

is there a general duty to give reasons for a decision?

when must a public body give a reason for a decision?

when demanded by statute when a body is performing a judicial function where the interest at stake is so important that fairness demands a reason to be provided if a public body has created a legitimate expectation to act a certain way, it must provide reasons if it acts a different way where a decision gives rise to widespread controversy

are decision makers often actually biased?

When will the courts deem a decision biased

if it could appear to a third party that a decision was biased

what is the test to determine if a decision is biased or not?

If the circumstances in which a decision is made are such that a fair-minded and informed observer would perceive a real possibility of bias on the part of a given decision-maker, then it will be unlawful for that decision-maker to participate in the making of the decision

What are the 3 sources for a legitimate expectation?

a promise regular practice a representation

what does having a legitimate expectation of something get you?

a relevant consideration a right to a hearing a right to have the expectation upheld

What is substantive review?

looking into the quality of a decision, not just the process/ form

Which case gave the test for unreasonableness

Associated provincial picture houses v Wednesbury corporation [1948]

What is the unreasonableness test?

"a decision so absurd that no sensible person could ever dream it is law within the powers of the authority"

Which case gave the test for irrationality

Council for the civil service unions v minister for the civil service [1985]

What is the irrationality test

If a decision is the opposite of logic or acceptable moral standards that nobody would arrive at the same decision, it is irrational

when was the ECHR created?

1950

How did the UK incorporate the ECHR into domestic law?

HRA 1998

Where is the ECHR upheld?

ECtHR

What case showed courts could review prerogative power as well as statutory powers?

GCHQ case

Can discretionary powers be reviewed?

yes

can acts of parliament be reviewed?

is legislation of the devolved assemblies and SP subject to review?

yes

is it the nature or the source of the power being exercised that will determine amenabillity to review?

nature

what case showed it is the nature of the power being exercised, not the source, that determines amenability to review?

R v Panel on Takeovers, ex p Datafin

What section of which act allows review for human rights reasons

Human Rights Act 1998, section 6

who can bring a case of judicial review under the HRA

victims only

What is a victim, for the purposes of the HRA 1998

People directly affected by a measure

can third parties file evidence or make representations?

Yes, at the court's discretion

What does a quashing order do?

Quashes, with retrospective effect, a decision

What does a mandatory order deal with?

Deals with wrongful inaction

What does a mandatroy order do

compels the performance of a public legal duty

What does a prohibiting order do?

prevents a public body from doing something - similar to injunctions

What does a declaration do?

states the law on the issues in dispute - can be used to clarify legal position before the public body acts

What does an injunction do?

Requires someone to do or refrain from doing something

Will a successful claim in judicial review give rights to damages?

no, unless there is a breach of private law additionally

What are Bingham's sub-rules of law

Questions of liability should be decided by the law the law of the land applies equally to all public officials should not exceed their powers the law must protect fundamental rights a method should be provided, at reasonable cost, to resolve civil disputes adjudicative procedires must be provided by the state should be fair the RoL requires the state to comply with its obligation in international law