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Law (Year 1) > Public Law 2 > Flashcards

Public Law 2 Flashcards

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1
Q

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

A

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

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2
Q

What are the two core things the rule of law requires

A

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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3
Q

What do formal theories of the rule of law include

A

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

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4
Q

What do substantive theories of the rule of law include

A

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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5
Q

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

A

Joseph Raz

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6
Q

Who is substantive in the context of the rule of law

A

Lord Bingham

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7
Q

Do the courts endorse substantive theories?

A

Yes (or at least they have done)

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8
Q

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

A

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

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9
Q

What are the two sources of executive power

A

Statute
Royal Prerogative

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10
Q

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

A

Anisminic [1969]

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11
Q

What is judicial review, according to Elliot and Varuhaus?

A

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

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12
Q

What happens in judicial review

A

The lawfulness of the decisions of public authorities are challenged

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13
Q

What are the 4 main grounds for judicial review

A

illegality
irrationality
procedural improriety
violation of convention rights

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14
Q

When will judges be needed for judicial review

A

When all internal processes have been exhausted

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15
Q

What is the difference between substantive and procedural unfairness

A

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

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16
Q

Who decides the limits of a power?

A

The courts

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17
Q

What does fettering a decision mean?

A

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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18
Q

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

A

no

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19
Q

What are the two circumstances when discretion may be used

A

for proper purposes
on the basis of relevant considerations

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20
Q

is royal prerogative subject to judicial review?

A

yes

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21
Q

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

A

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

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22
Q

can acts of parliament be judicially reviewed?

A

no, due to the doctrine of parliamentary sovereignty

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23
Q

What are the three things required for procedural fairness?

A

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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24
Q

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

A

Forfeiture cases
expectation cases
application cases

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25
Q

what is a forfeiture case

A

where the decision takes something away from someone

26
Q

what is an expectation case

A

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

27
Q

what is an application case

A

Where something is simply refused

28
Q

is there a general right to a hearing?

A

yes

29
Q

is there a general right to an oral hearing?

A

no

30
Q

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

A

no

31
Q

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

A

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

32
Q

are decision makers often actually biased?

A

no

33
Q

When will the courts deem a decision biased

A

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

34
Q

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

A

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

35
Q

What are the 3 sources for a legitimate expectation?

A

a promise
regular practice
a representation

36
Q

what does having a legitimate expectation of something get you?

A

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

37
Q

What is substantive review?

A

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

38
Q

Which case gave the test for unreasonableness

A

Associated provincial picture houses v Wednesbury corporation [1948]

39
Q

What is the unreasonableness test?

A

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

40
Q

Which case gave the test for irrationality

A

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

41
Q

What is the irrationality test

A

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

42
Q

when was the ECHR created?

A

1950

43
Q

How did the UK incorporate the ECHR into domestic law?

A

HRA 1998

44
Q

Where is the ECHR upheld?

A

ECtHR

45
Q

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

A

GCHQ case

46
Q

Can discretionary powers be reviewed?

A

yes

47
Q

can acts of parliament be reviewed?

A

no

48
Q

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

A

yes

49
Q

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

A

nature

50
Q

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

A

R v Panel on Takeovers, ex p Datafin

51
Q

What section of which act allows review for human rights reasons

A

Human Rights Act 1998, section 6

52
Q

who can bring a case of judicial review under the HRA

A

victims only

53
Q

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

A

People directly affected by a measure

54
Q

can third parties file evidence or make representations?

A

Yes, at the court’s discretion

55
Q

What does a quashing order do?

A

Quashes, with retrospective effect, a decision

56
Q

What does a mandatory order deal with?

A

Deals with wrongful inaction

57
Q

What does a mandatroy order do

A

compels the performance of a public legal duty

58
Q

What does a prohibiting order do?

A

prevents a public body from doing something - similar to injunctions

59
Q

What does a declaration do?

A

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

60
Q

What does an injunction do?

A

Requires someone to do or refrain from doing something

61
Q

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

A

no, unless there is a breach of private law additionally

62
Q

What are Bingham’s sub-rules of law

A

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

Law (Year 1) (3 decks)

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