public law 2 Flashcards
when can a decision from a non-statutory body be reviewed under JR?
performs functions with a sufficiently public and governmental character. decisions of certain non-statutory bodies could be subject to JR if their functions are such that, in the absence of self-regulation, government would likely need to intervene.
what is the effect of ouster clauses for reviewing a decision in JR? (when is ouster clause not relevant for decision to be reviewed via JR)
ouster clause doesn’t prevent JR if decision is illegal or made outside jurisdiction conferred by statute.
courts are generally hostile to ouster clauses and will interpret them narrowly to uphold rule of law.
if there is a time limitation clause in a decision - do the courts uphold this for purposes of JR?
yes, time limitation clauses generally are upheld as they restrict the time with which JR claims must be brought, thereby promoting legal certainty and administrative efficiency
what are the time limitations for bringing JR application for planning and pubic procurement decisions?
time limits are 6 weeks and 30 days
what is the most common remedy for JR?
quashing order = meaning public body will need to take their decision again
can a public authority delegate their discretionary powers to another entity?
general rule is no they cannot unless there is explicit statutory authorisation
what is the Carltona principle (delegating power from government ministers)?
where discretion is conferred on a government minister, courts will presume, in absence of evidence to the contrary, that the minister is allowed to delegate discretion to officials (civil servants) within his department, even if statute doesnt expressly say so
what is the wednesbury unreasonable test?
a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it
when ECHR rights are engaged what is the JR test that the courts should apply? (rather than the wednesbury unreasonable test)
proportionality test rather than the wednesbury unreasonable test
when a ECHR convention right has been engaged - what test applies (JR)?
proportionality test
when there is no ECHR convention right been engaged - what test applies (JR)?
wednesbury unreasonableness
what is the doctrine of proportionality?
requires that the means employed by a decision-maker to achieve a legitimate aim must be no more than is necessary to achieve that aim
what ground would be used to challenge a decision that didn’t provide a logical sequence of reasoning? (JR)
ground of irrationality (JR)
what does the ground of illegality mean? (JR)
Involves the public body acting outside its statutory powers (ultra vires)
what does the ground of procedural impropriety mean (JR)?
Involves failure to follow correct procedures
what does the ground of unreasonableness mean (JR)?
public body has acted unreasonably = so unreasonable that no reasonable authority could ever have come to it
if there is evidence of bias in a decision what is the legal implication of the decision?
the decision is invalid (automatic disqualification)
what is the difference between direct and indirect bias?
direct bias involves financial interest (therefore, a pecuniary interest) whereas indirect does not involve financial interest but may be due to significant personal relationship or bias on decision
what is procedural legitimate expectation? (when does it arise 2 situations)
1) public body has promised or represented that a particular procedure will be followed before a decision is made
2) where there has been an established practice for the public body to use a particular procedure
what is substantive legitimate expectation?
where an assurance or promise has led a person to believe that they will receive a particular tangible benefit
what must a public body show to lawfully frustrate substantive legitimate expectation?
may lawfully frustrate such an expectation if it can demonstrate that the action was proportionate and necessary in response to significant public interest
when can a public body frustrate a procedural legitimate expectation?
when there are compelling public interest reasons
what does is mean if a ECHR is an ‘absolute right’?
cannot be legitimately interfered with by the state
what does it mean if a ECHR is a ‘limited right’?
that the only way they can legitimately be interfered with is outlined in prescribed circumstances within the article
what does it mean if a ECHR is a ‘qualified right’?
can be interfered with:
a) prescribed by the law
b) in pursuit of a legitimate aim
c) interference is necessary in a democratic society (eg, proportionate)
what are examples of absolute rights?
article 3 = prohibition on tortue or inhuman or degrading treatment
article 4 = prohibition on slavery and forced labour
article 7 = no punishment without lawful authority
what are examples of limited rights?
article 2 = right to life
article 5 = right to liberty and security of a person
article 6 = right to a fair trial and fair legal process
what are examples of qualified rights?
article 8 = right to respect of private and family life
article 9 = freedom of thought, consciousness and religion
article 10 = freedom of express
article 11 = freedom of assembly and association
what is ‘positive obligation’ under ECHR?
state is under a duty to prevent violation of HR being carried out by relevant non-state actors
eg, enacting laws in their domestic legal systems
what is the margin of appreciation?
reflects the idea that contracting states have better knowledge of the political, social and cultural traditions that influence their country. therefore, have discretion when taking legislative, administrative or judicial measures that restrict ECHR rights.
what are areas that ECHtHR allows states to have a broader discretion? (margin of appreciation)
- mortality and religion
- public emergency
- national security
- social, economic and environmental policies
what are areas that ECtHR allows states to have less discretion? (margin of appreciation)
- person’s existence or identity
- person’s liberty
- legal rights
what is the time frame to commence processing within the date of the act complained of (HRA)?
Within 1 year of the date of the act complained of
what must UK courts to under s2(1) HRA 1998? [in regards to ECtHR decisions]
must take into account ECtHR decisions
does the ‘mirror rule’ bind UK supreme court to ECtHR decisions?
no it doesnt - it is not an abolsute rule. ECtHR’s decisions are not binding on UK courts but must be taken into account
what must a state demonstrate their use of force was to successfully interfere with an article 2 - right to life?
use of force was ‘no more than absolutely necessary’
does article 2 extend extra-territorially?
yes it does, jurisdiction applies if had sufficient control over the territory at the time the deaths occurred
what must an investigation into a death be to comply with article 2 - right to life?
investigation must be public, independent and involve the full participation of the family
can the state be found guilty of article 2 - right to life if they let a person commit suicide under NHS care?
yes there is a positive duty = NHS has failed to take reasonable steps to prevent real and immediate risk of suicide breaching Article 2
what 2 duties are placed on the state under article 2 (right to life)?
positive duty to act
investigative duty
what is article 3 ECHR?
absolute right = right to no torture or inhumane or degrading treatment or punishment
what duties does article 2 (no torture or inhumane treatment) impose on the state?
negative duty = absolute ‘no one shall be subject to torture or inhuman or degrading treatment or punishment’
positive duty = to take action to prevent individuals being subjected
what falls under the scope of inhuman or degrading treatment?
serious ill-treatment or neglect
what is the maximum period for detention without charge under article 5 (deprivation of liberty)?
the maximum period has been held as 4 days for terrorism cases
what must the law be in order to deprive someone of article 5 (deprivation of liberty)?
must be prescribed by law = law must be clear and precise enough to allow individuals to foresee conditions under which they may be deprived of their liberty
what must an officer have in order to arrest someone?
reasonable suspicion requires evidence or fact which would satisfy an objective observed that the person committed the offence. mere presence at the crime scene, without additional supporting evidence, doesn’t meet the standard for reasonable suspicion
what type of tribunal is needed under article 6 (right to fair and public hearing)?
determined by an independent and impartial tribunal established by law
what is the time process under article 6 that entitled everyone to a fair and public hearing within what time frame?
within a reasonable time
what is a closed material / closed evidence procedure?
process that involves withholding from suspects of closed evidence where disclosure wouldn’t be in the public interest
does criminal liability need to be determined by a criminal court under the ‘guilty concept’ (article 7: no punishment that is not prescribed by law)?
no it doesnt, for article 7 to apply there just needs to be at least a formal declaration of criminal liability by the contracting state
what are the 5 areas which are normally deemed as legitimate aims under Art8(2) for when a state can interfere with a person’s right under Art 8?
- national security
- public safety or economic well-being
- prevention of disorder or crime
- protection of health or morals
- protection of the rights and freedoms of others
is any interference with article 8 allowed if it’s legitimate aim is ‘national security’?
no - just because it is national security doesn’t automatically allow interference instead, must show that it is proportionate to that aim and accompanied by sufficient safeguards to protect the individual’s rights.
what two areas of freedom of expression under article 10 do the courts give a stronger protection to?
1) political
2) journalistic
what are the legitimate aims under Art10(2) where a state can interfere with an individuals right to freedom of expression?
- national security
- prevention of disorder or crime: protests
- protection of health or morals
- protecting the reputation or rights of others (morality/religion/racism; terrorism)
- preventing the disclosure of info received in confidence
- maintaining the authority and impartiality of the judiciary
does article 10 (freedom of expression) cover symbolic acts and protests?
yes = article 10 covers symbolic acts and protests - considered forms of expression as they convey specific views and ideas, and fact that they challenge policies doesnt exclude them from protection under article 10
what does indirect horizontal effect mean under s6(3)(a) HRA?
courts and tribunals are identified as public authorities and therefore, must act in accordance with s6(1) and make decisions that are compatible with the convention, even if both parties are private individuals.
if a private party wishes to invoke a convention right in a dispute with another private party - what must be established?
must be a pre-existing cause of acton against the other private party upon which to ‘hang’ the convention right
what is the most commonplace cause of action that results in engagement of Article 8?
tort of the misuse of private information
what are the 2 elements necessary for determining whether there has been a misuse of private information (as developed in Campbell)?
1) C has a reasonable expectation of privacy
2) court will conduct a balancing exercise between the competing interests of the right to privacy (art 8) and right to freedom of expression/public (art 10)
written notice needs to be given for any proposal to hold public procession for which 3 purposes?
1) demonstrate support for or opposition to the views or actions of any person or body of persons
2) publicise a cause of campaign
3) mark or commemorate an event
unless it is not reasonably practicable to given any advance notice of the procession
how much advance notice should organisers of public processions give to the police?
minimum of 6 clear days notice of the date, time and route of the procession
what are the 2 exceptions to the rule for when an organiser of a public procession doesnt need to give advance notice?
1) common or customarily held
2) funeral procession
when can conditions be imposed upon a public procession, if senior police officer reasonably believes that…. (2 things)
1) may result in serious public disorder, serious damage to property or serious disruption to the life of the community
2) purpose of organising is to intimidate others with a view of 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
if the police impose a condition on a public procession - how must they communicate this condition?
in writing
how long can the police place a ban on prohibiting processions (s13)? and how do they do it?
cannot exceed 3 months and requires consent of the Home Secretary to be obtained
what is the definition of a public assembly?
a public assembly is a meeting comprising two or more persons in a public place that is ‘wholly or partly open to the air’
is there an obligation to give advance notice of a public assembly to the police?
no there is no obligation and the purpose of the assembly is irrelevant
when can a senior police officer impose conditions on organising and attempting assemblies?
necessary to prevent the risk of disorder, damage, impact or intimidation.
powers must be used in a proportionate manner
what is a trespasser assembly?
consists of 20 or more persons ad is held at a place or on land to which the public has no right of access or only a limited right of access
(land means open air)
when can the chief police officer have the power to apply for a prohibition order for trespassory assemblies if they have reasonable belief that it is intended to be held, and that the assembly is….
1) likely to be held without permission of occupier exceeding limits of any persmision or limits public right of access
2) in serious disruption to the life of the community; or
3) significant damage to the land, building or monument
is breach of the peace a criminal offence?
no it is not but gives police powers such as: arrest, detention, having person bound over to maintain good behaviour and dispersing.
what is the definition of breach of the peace under R v Howell?
whenever harm is actually done or likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance
for the police to use different powers such as arrest, disbursement, detention ect what must they show?
to lawfully use these powers there must be a reasonable apprenheison of a sufficiently imminent breach of the peace
[applies to all powers for breach of the peace]
when the police can show there was an imminent breach to the peace, their use of common law powers will only be lawful when?
if there were not arbitrary, deployed in good faith and proportionate
what does s6(1) HRA state?
it is unlawful for a public authority to act in a way which is incompatible with a convention right
when can public bodies derogate from ECHR? (art 15 ECHR)
In time of war or other public emergency threatening life of the nation
if a declaration of incompatibility is issued but there is the statutory defence under Art6(2) then what is the outcome?
the defence is successful and therefore individuals will not receive a direct remedy
what does S3 HRA require the courts to do?
requires them to interpret legislation, so far as possible, in a manner compatible with convention rights
what is the statutory defence under S6(2)?
public authority will not breach the obligation imposed under S6(1) if its actions are either required by primary legislation, or it is acting a way that gives effect to primary or subordinate legislation
what is the standard procedure for remedy action under s10 HRA?
requires that a draft amending order be laid before parliament for 60 days before being approved by both Houses of Parliament.
(the second way: Urgent way = where order may be laid before parliament for approval after it is made)
