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Public Law Flashcards

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1
Q

What is public law?

A

it regulates the relationship between the state and individuals

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2
Q

Why is public law important today?

A

it ensures that the gov doesn’t abuse power over individuals and that their power is used fairly and appropriately

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3
Q

What is meant by the UK?

A

Great Britain (England, Scotland, Wales) and Northern Ireland

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4
Q

What is parliament?

A

Highest legislative authority in the UK who are responsible for making and repealing Uk law and scrutinising the work of government

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5
Q

Features of parliament

A
  • bicameral (two chambers)
  • house of commons (650 elected MPs)
  • the queen (hereditary monarch)
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6
Q

What does the house of commons do?

A

-passes laws, controls finance, scrutinises gov policy and debates major issues

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7
Q

What does the house of lords do?

A

key contributor to law making process, scrutinises gov activity, conducts investigations using committees

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8
Q

Who is the monarch?

A
  • Head of state
  • important constitutional role
  • no political role
  • exclusive powers
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9
Q

What is the government?

A
  • members of political party/parties with majority seats in house of commons
  • made up of prime minister, ministers, cabinet
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10
Q

Who is the prime minister?

A
  • head of government

- exercises presidential like powers

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11
Q

What is cabinet?

A
  • inner circle of government
  • forum of policy discussion
  • policy makers
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12
Q

What is the passage of legislation (starting in HoC and HoL)

A
  • Bill is proposed
  • 1st reading in commons (formality)
  • 2nd reading in commons (principles/policies)
  • Committee stage (evidence gathering/amendments)
  • Report stage (details/amendments)
  • 3rd reading in commons (little debate)
  • Consideration by house of lords
  • Royal assent (formality)
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13
Q

What is a constitution?

A

a set of rules/principles regarded as authoritative which specifies how power is distributed and exercised

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14
Q

What do constitutions do?

A
  • identify who may express public power
  • enables officials to exercise power
  • imposes limits on exercise of power
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15
Q

Written/codified constitutions

A

-principles/rules of constitutional law contained in the text itself

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16
Q

What is the nature of the UK constitution?

A

-it is uncodified (lacks authoritative/definitive text)

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17
Q

What are sources of the UK constitution?

A
  • statutes/legislation
  • judicial precedent/case law
  • statutory interpretation
  • laws/customs of parliament
  • constitutional conventions
  • prerogative powers of the crown
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18
Q

Important statues/legislation

A
  • magna carta (1215)
  • petition of rights (1628)
  • bill of rights (1689)
  • act of settlement (1701)
  • parliament acts (1911&1949)
  • European communities act (1972)
  • human rights act (1998)
  • constitutional reform act (2005)
  • succession to the crown act (2013)
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19
Q

Important judicial precedent/caselaw/commonlaw

A
  • Writ of babeas corpus
  • Entick v Carrington (1765)
  • M v Home office (1994)
  • Pickin v BRB (1974) (parliamentary sovreignty)
  • Factortame cases (effects of membership of EC/EU)
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20
Q

Important constitutional conventions

A
  • rules of constitutional morality
  • -not enforceable in the courts but regarded as binding by those who operate the constitution
  • enforced politically
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21
Q

Important prerogative powers

A
  • (historically) the discretionary powers of the monarch
  • (now) exercised in the name of the crown but decisions taken by gov ministers
    e. g appointment/dismissal of ministers, treaty making,etc
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22
Q

What does separation of powers mean?

A

-it means to oppose the concentration of power in a single person or group (threat to democracy)

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23
Q

Theorists of separation of power

A

-John Locke (1690) ‘too great a temptation to human frailty… for same persons who have the power of making laws to have the power to execute them’
Montesquieu (1748) ‘When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty’

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24
Q

Efficiency v Compromising liberties/freedoms

A

-do you want govt that makes quick decisions but is less democratic or do you want an extremely democratic government that takes a long time to make decisions and is inefficient and weak

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25
Q

Three constitutional functions

A
  • legislative function (passes laws)
  • executive function (day to day application of policies)
  • judicial function (discharge judicial functions)
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26
Q

To what extent is there a separation of powers in the UK?

A

‘Parliament, the executive and the courts each have their distinct and largely exclusive domain’–> they have their own turf but can still participate to a lesser degree to the other functions.
-MP’s make the laws and can vote for them (distinctions between functions isn’t airtight)

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27
Q

What is the common law system?

A

precedent, law making in context by judges, parliamentary sovereignty

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28
Q

Examples of constitutional functions intertwined

A
  • lord chancellor (till 2005) member of cabinet, member of judiciary and lord chancellor of HoL
  • before constitutional reform act (2005) HoL and highest court in England were part of the same institution
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29
Q

Is the separation of power fundamental to the UK constitution?

A

Yes, but it is more flexible and not as strict as approach by Montesquieu (not as strict as USA/France)

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30
Q

What is a balanced constitution?

A

balanced between efficiency and democratic liberties forming a constitutional equilibrium

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31
Q

Three components of the ‘rule of law’ (Dicey)

A
  • regular law is supreme over arbitrary power
  • equality before the law
  • the rights of individuals are secured by ordinary remedies of common law
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32
Q

What is the rule of law?

A

‘the rule of law, not of men’ (Aristotle)

-for law to be a law it needs to go through parliament in order to prevent arbitrary power

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33
Q

Narrow view of the rule of law (J. Raz)

A
  • rule of law also exists in societies that aren’t democratic
  • if the laws of a society are sexist and racist as long as it is what the law says then it is acting according to RoL
  • RoL is designed to minimize the harms to freedom/dignity which the law may cause NOT guarantee those freedoms
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34
Q

Wider view of the rule of law (Allan)

A
  • the RoL should be used as a constitutional standard
  • it should promote fairness, legality, impartiality and proportionality
  • Human rights refer to human condition and therefore are universal
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35
Q

Common ground of wide/narrow RoL

A
  • laws should be prospective (apply to the future)
  • laws should be clear and stable
  • independence of judiciary
  • impartiality
  • access to justice
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36
Q

Orthodox view of parliamentary sovereignty (Dicey)

A
  • parliament can enact any content into law and no person/body can override it or set it aside
  • no institution can review parliaments’ legislation (no judicial review)
  • no parliament can bind the next (can repeal any previous legislations)
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37
Q

What is the ideology of the EU?

A
  • wanted to create market between member states
  • freedom of movement (goods, people, services, capital)
  • human beings moved by economical interest
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38
Q

What is ECHR (european convention on human rights)

A
  • wanted to create an ideology that could fight against extreme ideologies that would cause a war
  • human beings moved by ideology
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39
Q

Why is there a conflict between primary judicial review and UK constitutional law?

A

according to parliamentary sovereignty no institution can review legislation created by parliament and parliament is free to enact any content they want

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40
Q

What was the EU influence on UK constitutional law?

A

-the supremacy of EU law which meant that EU laws trump conflicting domestic law regardless of if it was enacted before or after EU law

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41
Q

What was the problem of the UK joining the EU in terms of constitutional law?

A

-the supremacy of EU law conflicts parliamentary sovereignty which is a fundamental part of the constitution

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42
Q

What was the Court of Appeals decision on allowing Britain to join the EU?

A
  • they held that it was not an illegal surrendering of parliamentary sovereignty
  • parliament voluntarily chose the recognise EU law so it wasn’t intrusion on sovereignty
43
Q

What does the ‘European communities act’ say about the relationship between the UK and EU?

A

‘EU law not only becomes a source of UK law but actually takes precedence over all domestic sources of UK law, including statutes’

44
Q

What is the ‘ECA as a pipe’?

A
  • European communities act is a pipe through which EU law flows into domestic legislation
  • through ECA section 2 laws from treaties are to be ‘enforced’ in the UK
45
Q

What is the ‘normal rule’ stated in the ECA section 67?

A

‘any normal rule is that any domestic legislation may be consistent with EU law’

46
Q

What made UK courts finally recognise the supremacy of EU law?

A

the case called Factortame (no. 2) in 1991
-Lord Ridge found that is is the duty of UK courts to ‘override any rule of national law found to be in conflict with any directly enforceable rule of (european) community law’

47
Q

What changes were made to the rule of recognition in Factortame (no. 2)

A
  • the rule of recognition helps recognise what laws are/mean
  • RoR changed from being whatever parliament enacts to being what parliament enacts subject to EU law because EU law had supremacy
48
Q

What does it say in the ECA section 2(4) ?

A
  • if parliament legislates a law it needs to be subject to the ECA and according to ECA section 2 (1) it says that EU law is supreme to domestic law
  • established rule of priority/primacy of EU law
49
Q

What are Lord justice Laws views on parliamentary sovereignty?

A
  • we still have parliamentary sovereignty
  • parliament can pass what they want in terms of context they just have to follow a specific manner/form (be compatible with EU law)
  • there is both parliamentary sovereignty and EU supremacy
50
Q

What are prerogative powers?

A

decisions the government can take before/without having to ask anyone

51
Q

How can prerogative powers co-exist with the rule of law?

A
  • rule of law states that for a law to be a law it needs to go through parliament
  • it contradicts the allowance of arbitrary powers
  • Dicey says prero powers can exist in our constitution if they are legally recognised
52
Q

What is the role of the courts in terms of prerogative powers?

A

role of the courts is to legitimise and recognise which powers remain legally in the hands of government (to make sure power isn’t used arbitrarily)

53
Q

How was prerogative powers exercised before 1688?

A

-through proclamations of rules, obligations, limitations and sometimes even criminal offences

54
Q

Could courts intercept prerogative power before 1688?

A

Yes, courts could deny the right of the monarch to pass certain proclamations if it went too far beyond the limits of their powers

55
Q

What happened to prerogative powers post 1688?

A
  • after glorious revolution new rule of recognition says that will of parliament is supreme
  • prerogative powers could not cast aside or repeal statutes without consent of parliament according to Bill of Rights art. 1
56
Q

Who currently exercises prerogative powers?

A

government/government ministers either by themselves or through advise they provide to the monarch (m is constitutionally bound to follow this advice even if they don’t agree)

57
Q

Two categories of modern prerogative powers?

A
  • personal prero powers of monarch/acted by the monarch from advice of gov
  • prero powers of the executive
58
Q

examples of personal prerogative powers

A

immunity from taxation, immunity from suit/persecution, appointment of prime minister, parliamentary prorogation, granting royal assent

59
Q

examples of prerogative powers of government

A

concluding international treaties, declaration of war, troop deployment

60
Q

Problem with EURAct 2015 (referendum act)

A

silent on what would happen if the result of the referendum changed the status quo (leaving the EU)

61
Q

What happens if there is a clash between the will of parliament and the result of a referendum?

A
  • parliament could decide to disregard the referendum because the result is not binding
  • parliament cannot be limited by external entities because it is sovereign
62
Q

is the involvement of parliament required to leave the EU? (before Miller case)

A
  • vote in parliament is necessary since leaving the EU is a fundamental change in UK law
  • vote in parliament is constitutionally necessary it will have significant impact on the UK constitutional arrangement
  • you do not need to go through parliament you could use section 2 para 2 of the ECA which allowed the gov to make the decision to leave (statutory basis)
63
Q

What was the main implication of the miller case?

A
  • an act of parliament is required to authorise ministers to give notice of the decision of the UK to withdraw from the EU and prero powers cannot be used to leave without consent of parliament
  • hierarchy of laws has also been created
  • traditional version of p.s no longer exists
64
Q

What methods were there to protect human rights before the HRA?

A
  • LIMITING government powers

- giving each individual rights that cannot be infringed

65
Q

What are human rights?

A

rights guaranteed to ALL humans, you don’t need any specific attributes to qualify

66
Q

What was the purpose of the ECHR?

A

to safeguard against competing totalitarian ideologies

67
Q

How was the ECHR incorporated into UK law?

A

Through the HRA (1998) and before that they were only internationally bound

68
Q

What are the steps to examine whether there is an infringement of rights?

A
  • What right was infringed?
  • Is it protected by HRA?
  • What is the conflicting right/public interest?
  • Balancing tests (is it justified)
  • Remedy
69
Q

What justifies different treatment? (equality)

A

we treat similar cases in the same way and dissimilar cases in different ways
-for example if you are applying to law school and are discriminated because of your height that is not allowed but if you are not allowed because you don’t meet the grade requirements it is allowed because it is RELEVANT

70
Q

What is the clash between rights in the Lee case?

A

-the right to equality the right of freedom of expression (ECHR article 10, HRA section 1)

71
Q

What is the rationale of freedom of expression?

A

It must promote fulfilment of individuals in society

72
Q

When is freedom of expression not communicative?

A
  • if the act has nothing to do with the cause

e. g if someone burns pencil in the street and says its because they’re protesting deforestation it’s not communicative

73
Q

Where do you check to see if rights from ECHR are anchored in HRA

A
  • HRA section 1 contains articles from ECHR
  • could be in act of parliament
  • if it’s not in either it’s not supported by UK law
74
Q

What are political (negative rights)?

A

rights the gov refrains from doing and takes a step back e.g freedom from interference

75
Q

What are social (positive) rights?

A

where the gov needs to interfere to guarantee these rights e.g rights to basic housing

76
Q

Why did Lady Hale describe there was no discrimination in the Lee case?

A
  • the defendant’s objection was to the message not to the messenger
  • if the messenger was heterosexual she would’ve had the same reaction
77
Q

What does it say in section 6 of the HRA?

A

there is a duty for every public authority to act in a way compatible with ECHR

78
Q

What sections of the HRA uphold parliamentary sovreignty?

A
  • section 4 which allowes an act that is incompatible with ECHR to be passed
  • section 19
79
Q

What is federalism (federal constitution)?

A

it implies the sharing of sovereignty in certain areas

  • legislative sovereignty is shared
  • USA
80
Q

What is devolution?

A

‘delegation of central government powers without the relinquishment of sovereignty’

81
Q

Is the UK a federation (legal perspective) ?

A
  • NO

- It is a unitary state because the epicentre of legislative sovereignty is parliament

82
Q

Two forms of devolution

A
  • legislative devolution

- executive devolution

83
Q

what is legislative devolution?

A

transfer of powers to make primary legislation in a certain fields

84
Q

what is executive devolution?

A

transfer of administrative responsibilities and powers to make secondary legislation in certain fields

85
Q

Through what laws were devolution officially implemented ?

A
  • scotland act of 1998

- Government of wales act 1998

86
Q

What powers were Scotland given during devolution?

A
  • legislative and executive powers

- can pass acts of primary legislation

87
Q

Where is the positive list that contains the limits to the powers of scottish parliament (devolution) ?

A
  • In section 1 schedule 4 and of the scotland act

- states legislation from Westminster that cannot be modified by scots

88
Q

What are the reserved matters and where are they found?

A
  • in section 1 schedule 5
  • areas that Westminster has kept and not devolved to scots
  • abortion law, immigration, foreign affairs, etc.
89
Q

What happens if scottish parliament legislates in an area of reserved matters (schedule 5) ?

A
  • even if the bill has been enacted it is not law and has no legal effect
  • beyond their competence
90
Q

Did acts of scottish parliament have to be compatible with EU law?

A

Yes

-if they weren’t Westminster could set them aside

91
Q

What is pre-enactment scrutiny? (Scotland)

A
  • allowed legal officers in scotland and UK to take action when a proposed bill in scot parliament does not fall within devolved area of the law
  • they can give to supreme court to examine
92
Q

What is the policy for post enactment adjudication and where is it found?

A
  • schedule 6 of scotland act

- incase act did not raise alarm and receives royal assent and becomes law

93
Q

What does AXA General Insurance ltd v Lord Advocate say about judicial scrutiny by the supreme court when Scotland goes beyond the competence of their devolution?

A
  • scottish law does not have the same power as an act of parliament
  • it can be subject to judicial review because it doesn’t have the same sovereignty
  • as long as the law falls within competence of scot parliament the court said they will not intervene
94
Q

Why was the welsh claim for independence weaker than that of scotland?

A
  • wales has been part of england since 13th century

- they never had their own parliament

95
Q

What powers were wales initially given through devolution?

A
  • only granted executive devolution
  • they could only pass secondary legislation which had to be anchored by primary legislation like act of Westminster parliament
96
Q

Where is the positive list of powers given to wales through devolution and where are they anchored?

A
  • Government of wales act schedule 2

- if something is not explicitly mentioned there we assume it belongs to westminster

97
Q

What areas were the welsh national assembly initially allowed to legislate? (devolution)

A
  • economic development
  • agriculture
  • education and training, etc.
98
Q

Why was the government of wales act of 2006 created?

A
  • welsh were dissatisfied with current devolution settlement

- this act enhanced legislative competence

99
Q

What were the benefits of the government of wales act 2017?

A

-they adopted the reserved matters model like scotland so there were more areas of the law they could legislate in

100
Q

what act was the initial basis for devolution in Ireland?

A

-government of ireland act in 1914 (NEVER implemented due to WW1)

101
Q

What was the role of government of ireland act of 1920?

A

-split up ireland into northern ireland and irish republic with two separate governments

102
Q

What is the basis for the current structure of devolution in ireland?

A
  • belfast agreement 1997
  • established two separate communities and governments after the ‘troubles’
  • devolution agreement
  • anchored by Northern Ireland act 1998 in UK law
103
Q

What is the current devolution strucure of northern Ireland?

A
  • legislative and executive powers to northern ireland assembly
  • if matters are not mentioned in schedules 2 and 3 of belfast agreement they’re not to be legislated on

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