public law 2

Question 1

when can a decision from a non-statutory body be reviewed under JR?

Answer 1

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.

Question 2

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)

Answer 2

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.

Question 3

if there is a time limitation clause in a decision - do the courts uphold this for purposes of JR?

Answer 3

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

Question 4

what are the time limitations for bringing JR application for planning and pubic procurement decisions?

Answer 4

time limits are 6 weeks and 30 days

Question 5

what is the most common remedy for JR?

Answer 5

quashing order = meaning public body will need to take their decision again

Question 6

can a public authority delegate their discretionary powers to another entity?

Answer 6

general rule is no they cannot unless there is explicit statutory authorisation

Question 7

what is the Carltona principle (delegating power from government ministers)?

Answer 7

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

Question 8

what is the wednesbury unreasonable test?

Answer 8

a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it

Question 9

when ECHR rights are engaged what is the JR test that the courts should apply? (rather than the wednesbury unreasonable test)

Answer 9

proportionality test rather than the wednesbury unreasonable test

Question 10

when a ECHR convention right has been engaged - what test applies (JR)?

Answer 10

proportionality test

Question 11

when there is no ECHR convention right been engaged - what test applies (JR)?

Answer 11

wednesbury unreasonableness

Question 12

what is the doctrine of proportionality?

Answer 12

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

Question 13

what ground would be used to challenge a decision that didn’t provide a logical sequence of reasoning? (JR)

Answer 13

ground of irrationality (JR)

Question 14

what does the ground of illegality mean? (JR)

Answer 14

Involves the public body acting outside its statutory powers (ultra vires)

Question 15

what does the ground of procedural impropriety mean (JR)?

Answer 15

Involves failure to follow correct procedures

Question 16

what does the ground of unreasonableness mean (JR)?

Answer 16

public body has acted unreasonably = so unreasonable that no reasonable authority could ever have come to it

Question 17

if there is evidence of bias in a decision what is the legal implication of the decision?

Answer 17

the decision is invalid (automatic disqualification)

Question 18

what is the difference between direct and indirect bias?

Answer 18

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

Question 19

what is procedural legitimate expectation? (when does it arise 2 situations)

Answer 19

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

Question 20

what is substantive legitimate expectation?

Answer 20

where an assurance or promise has led a person to believe that they will receive a particular tangible benefit

Question 21

what must a public body show to lawfully frustrate substantive legitimate expectation?

Answer 21

may lawfully frustrate such an expectation if it can demonstrate that the action was proportionate and necessary in response to significant public interest

Question 22

when can a public body frustrate a procedural legitimate expectation?

Answer 22

when there are compelling public interest reasons

Question 23

what does is mean if a ECHR is an ‘absolute right’?

Answer 23

cannot be legitimately interfered with by the state

Question 24

what does it mean if a ECHR is a ‘limited right’?

Answer 24

that the only way they can legitimately be interfered with is outlined in prescribed circumstances within the article

Question 25

what does it mean if a ECHR is a 'qualified right'?

Answer 25

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)

Question 26

what are examples of absolute rights?

Answer 26

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

Question 27

what are examples of limited rights?

Answer 27

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

Question 28

what are examples of qualified rights?

Answer 28

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

Question 29

what is 'positive obligation' under ECHR?

Answer 29

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

Question 30

what is the margin of appreciation?

Answer 30

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.

Question 31

what are areas that ECHtHR allows states to have a broader discretion? (margin of appreciation)

Answer 31

- mortality and religion - public emergency - national security - social, economic and environmental policies

Question 32

what are areas that ECtHR allows states to have less discretion? (margin of appreciation)

Answer 32

- person's existence or identity - person's liberty - legal rights

Question 33

what is the time frame to commence processing within the date of the act complained of (HRA)?

Answer 33

Within 1 year of the date of the act complained of

Question 34

what must UK courts to under s2(1) HRA 1998? [in regards to ECtHR decisions]

Answer 34

must take into account ECtHR decisions

Question 35

does the 'mirror rule' bind UK supreme court to ECtHR decisions?

Answer 35

no it doesnt - it is not an abolsute rule. ECtHR's decisions are not binding on UK courts but must be taken into account

Question 36

what must a state demonstrate their use of force was to successfully interfere with an article 2 - right to life?

Answer 36

use of force was 'no more than absolutely necessary'

Question 37

does article 2 extend extra-territorially?

Answer 37

yes it does, jurisdiction applies if had sufficient control over the territory at the time the deaths occurred

Question 38

what must an investigation into a death be to comply with article 2 - right to life?

Answer 38

investigation must be public, independent and involve the full participation of the family

Question 39

can the state be found guilty of article 2 - right to life if they let a person commit suicide under NHS care?

Answer 39

yes there is a positive duty = NHS has failed to take reasonable steps to prevent real and immediate risk of suicide breaching Article 2

Question 40

what 2 duties are placed on the state under article 2 (right to life)?

Answer 40

positive duty to act investigative duty

Question 41

what is article 3 ECHR?

Answer 41

absolute right = right to no torture or inhumane or degrading treatment or punishment

Question 42

what duties does article 2 (no torture or inhumane treatment) impose on the state?

Answer 42

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

Question 43

what falls under the scope of inhuman or degrading treatment?

Answer 43

serious ill-treatment or neglect

Question 44

what is the maximum period for detention without charge under article 5 (deprivation of liberty)?

Answer 44

the maximum period has been held as 4 days for terrorism cases

Question 45

what must the law be in order to deprive someone of article 5 (deprivation of liberty)?

Answer 45

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

Question 46

what must an officer have in order to arrest someone?

Answer 46

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

Question 47

what type of tribunal is needed under article 6 (right to fair and public hearing)?

Answer 47

determined by an independent and impartial tribunal established by law

Question 48

what is the time process under article 6 that entitled everyone to a fair and public hearing within what time frame?

Answer 48

within a reasonable time

Question 49

what is a closed material / closed evidence procedure?

Answer 49

process that involves withholding from suspects of closed evidence where disclosure wouldn't be in the public interest

Question 50

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)?

Answer 50

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

Question 51

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?

Answer 51

- 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

Question 52

is any interference with article 8 allowed if it's legitimate aim is 'national security'?

Answer 52

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.

Question 53

what two areas of freedom of expression under article 10 do the courts give a stronger protection to?

Answer 53

1) political 2) journalistic

Question 54

what are the legitimate aims under Art10(2) where a state can interfere with an individuals right to freedom of expression?

Answer 54

- 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

Question 55

does article 10 (freedom of expression) cover symbolic acts and protests?

Answer 55

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

Question 56

what does indirect horizontal effect mean under s6(3)(a) HRA?

Answer 56

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.

Question 57

if a private party wishes to invoke a convention right in a dispute with another private party - what must be established?

Answer 57

must be a pre-existing cause of acton against the other private party upon which to 'hang' the convention right

Question 58

what is the most commonplace cause of action that results in engagement of Article 8?

Answer 58

tort of the misuse of private information

Question 59

what are the 2 elements necessary for determining whether there has been a misuse of private information (as developed in Campbell)?

Answer 59

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)

Question 60

written notice needs to be given for any proposal to hold public procession for which 3 purposes?

Answer 60

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

Question 61

how much advance notice should organisers of public processions give to the police?

Answer 61

minimum of 6 clear days notice of the date, time and route of the procession

Question 62

what are the 2 exceptions to the rule for when an organiser of a public procession doesnt need to give advance notice?

Answer 62

1) common or customarily held 2) funeral procession

Question 63

when can conditions be imposed upon a public procession, if senior police officer reasonably believes that.... (2 things)

Answer 63

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

Question 64

if the police impose a condition on a public procession - how must they communicate this condition?

Answer 64

in writing

Question 65

how long can the police place a ban on prohibiting processions (s13)? and how do they do it?

Answer 65

cannot exceed 3 months and requires consent of the Home Secretary to be obtained

Question 66

what is the definition of a public assembly?

Answer 66

a public assembly is a meeting comprising two or more persons in a public place that is 'wholly or partly open to the air'

Question 67

is there an obligation to give advance notice of a public assembly to the police?

Answer 67

no there is no obligation and the purpose of the assembly is irrelevant

Question 68

when can a senior police officer impose conditions on organising and attempting assemblies?

Answer 68

necessary to prevent the risk of disorder, damage, impact or intimidation. powers must be used in a proportionate manner

Question 69

what is a trespasser assembly?

Answer 69

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)

Question 70

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....

Answer 70

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

Question 71

is breach of the peace a criminal offence?

Answer 71

no it is not but gives police powers such as: arrest, detention, having person bound over to maintain good behaviour and dispersing.

Question 72

what is the definition of breach of the peace under R v Howell?

Answer 72

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

Question 73

for the police to use different powers such as arrest, disbursement, detention ect what must they show?

Answer 73

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]

Question 74

when the police can show there was an imminent breach to the peace, their use of common law powers will only be lawful when?

Answer 74

if there were not arbitrary, deployed in good faith and proportionate

Question 75

what does s6(1) HRA state?

Answer 75

it is unlawful for a public authority to act in a way which is incompatible with a convention right

Question 76

when can public bodies derogate from ECHR? (art 15 ECHR)

Answer 76

In time of war or other public emergency threatening life of the nation

Question 77

if a declaration of incompatibility is issued but there is the statutory defence under Art6(2) then what is the outcome?

Answer 77

the defence is successful and therefore individuals will not receive a direct remedy

Question 78

what does S3 HRA require the courts to do?

Answer 78

requires them to interpret legislation, so far as possible, in a manner compatible with convention rights

Question 79

what is the statutory defence under S6(2)?

Answer 79

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

Question 80

what is the standard procedure for remedy action under s10 HRA?

Answer 80

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)