Public Law - ACADEMICS Flashcards
(155 cards)
1
Q
2011 Referendum in Wales
A
Removed part 3 and such.5 of G of W Act 2006, replacing with part 4 and sch.7 - Acts of Assembly with full competence in 20 main areas and third stage from Better Governance for Wales
1
Q
What did Kavanagh say of the decision in Wilson?
A
Either returned courts to usual function or increased their powers by retaining choice in choosing enacted or ‘unenacted legislation’
1
Q
What section of the CRA guarantees judicial independence through LC function?
A
S.3
1
Q
What protocol of the ECHR allows EU to accede to the ECHR?
A
Protocol 14
1
Q
What question did Barber think RoL asks?
A
‘What does it mean to be governed by law rather than by men’
1
Q
Who said that the law needs to be clear to respect autonomy, and thus requires other parts such as substantive equality?
A
TRS Allen
2
Q
“A Programme for Progress” Labour Peers
A
HoL Reform - 450, remove hereditary, force retirement at 80 (see Hand), all working peers, 3/5, no Lords majority, HoL Appointments Commission in statute.
2
Q
2004 Northern England devo referendums
A
Decisive rejection of political power to English Regional Assemblies
2
Q
“Better Governance for Wales” (2005)
A
Separate legislature and executive in three stages - more positive by G, enhanced legislative powers and grant assembly greater legislative devo after referendum (see 2011 Referendum)
2
Q
Name two cases where RoL has affected the interpretation of statutes
A
Pierson and Simms - injection of substantive in Simms, need to expressly infringe in Pierson
2
Q
TRS Allen on RoL
A
law needs to be clear to respect autonomy, and thus requires other parts such as substantive equality
3
Q
What did Vernon Bogdanor say about the British Constitution
A
The old was based on PS, the new is based on the idea of a constitutional state based on separation of powers
3
Q
In what case did the courts explicitly refuse to accept a common law duty to give reasons?
A
Hasan
3
Q
What are two reasons why Elliot thinks the Torie HRA plans to be unlikely?
A
Coalition, where neither Lib Dem nor Labour support withdrawal, and devolution matters
4
Q
What case seems to show the Lords advocating P in domestic law?
A
Pham
5
Q
Who argued, with Hickman and Elliot, that WU should coexist with P?
A
Sales
6
Q
Who highlighted the issue of EVEL with a majority SNP and labour government - minority in England unable to pass England-only legislation?
A
Deborah Orr
6
Q
Van Duyn v Home Office ratio
A
Fundamental freedoms have direct effect
6
Q
What case established the supremacy of EU law?
A
Costa v ENEL
6
Q
How does Dworkin distinguish between the formal and substantive conception of RoL?
A
‘Rule book conception’ and ‘rights conception’
8
Q
“Protecting Human Rights in the UK”
A
Conservatives - repeal HRA, remove binding nature as ‘advisory only’ from ECHR, legislate BoR only applying to most serious cases, and if rejected by CoEU then withdraw completely.
9
Q
How does Drewry argue Dicey’s RoL does not match 20th century
A
Prohibiting wide discretionary authority does not match with 20th century interventionist state
10
Q
Who said in Karas that it was ‘at best an unacceptable disregard’ of RoL and ‘at worst an unacceptable disdain?
A
Munby J
10
Q
Who argued that stopping Scottish/Welsh MPs from voting/creating English P will break up the union?
A
Peter Hain MP
11
Who argued the UK would end up as a confederal state?
Rafael Bear
12
What did Lord Upjohn say in Padfield?
No reasons given may lead the court to conclude that 'he had no good reason at all'
13
Why did the Sunningdale Agreement collapse?
General strike and unionist opposition
14
Richard Commission (2002)
2004 Report proposed primary legislative powers on all matters not explicitly reserved
15
HoL Reform Bill 2012
240 elected, 60 appointed, 10 years. Abandoned in August 2012
16
St David's Day Process (2015)
Recommendations from Silk Commission - Welsh devo moved closer to Scottish (reserved), but maintain asymmetry by keeping significant areas at Westminster where they are not for Scotland and NI
17
What did Jowell say of RoL
It is a form of institutional morality, acting as a constraint on the uninhibited exercise of government powers
19
Who was sceptical about 'personal prerogatives' of the Queen given the conventions and procedures already established?
Blackburn
20
Who argued HRA s.10 gives too much power to G at the expense of P?
Loveland
21
Who believes in RoL as a principle of institutional morality, constrining uninhibited exercise of governmental power?
Jowell
21
What does Elliot suggest about interpreting legislation and pragmatism?
In cases like Witham and Anisminic, the courts have preferred to interpret P intention as consistent with fundamentals, rather than refusing to apply the AoP
23
Who argued the law needs to be clear to respect autonomy, so other equally important requirements (e.g. substantive equality) are needed in RoL?
TRS Allen
24
Who argued the EU would be 'doomed' and it would be the 'end of peace on the continent' if Tories leave EU?
Alan Posener
25
Who highlighted how the White Paper, "Better Governance for Wales" would still limit the legislative powers to the current powers the Assembly already has
Alan Trend
26
What was the first acknowledgment of manner and form entrenchment after Thoburn?
H v Lord Advocate - no repeal of Scotland Act unless expressly as 'fundamental constitutional nature'
27
What does s.2(4) ECA allow?
Allows EU law to prevail over domestic law
27
Who argued RoL needs to minimally conform to autonoy, intrinsically including individual respect for persons?
Dworkin
28
"Legislative devolution is federalism without the courage of its convictions"
Sir David Williams
29
Macarthys Ltd v Smith
Equal pay
30
What did Craig argue about ECJ supremacy?
Communautaire approach through Costa v ENEL
31
Lord Falconer on devo
English P would 'dwarf all other institutions'
32
Who expressed concern that courts may see EU law as 'autonomously entrenched' rather than taking effect through AoPs?
JDB Mitchell
32
Who looked into the possibility of entrenching a British BoR?
Joint Committee on Human Rights
34
Karas
Next day deportation
36
Who termed our electoral system 'absurd' and called for reform?
Owen Jones
36
Kavanagh
Pepper v Hart amounts to enforcing 'unenacted intentions', undermining rationale and integrity of the legislative process
37
Name at least two times when RoL has prohibited the action of officials
Karas, Entick v Carrington, Cornerhouse, Ex p Bennett, Golder v UK
38
Who sarcastically referred to Blair as 'President Blair'?
Timothy Ash in the Guardian
39
HoLCC on arms length bodies
Threefold classification - non-ministerial, executive and non-departmental
39
Who said that no reasons given may lead the court to conclude that 'he had no good reason at all'
Lord Upjohn in Padfield
40
Who believed Dicey's RoL was substantive?
TRS Allen - used it to base his own conception
41
Government response to HoLCC 2010-12
Unnecessary and not qualitatively different, impossible to define
41
Who treated Wade's political fact of rule of recognition with 'respectful reserve'?
TRS Allen
42
Anglo-Irish Agreement (1985)
G and Irish G agreed to cooperate on justice and political progress
43
Who argued Dworkin's RoL makes it 'nothing more or less than a synonym for a rights based theory of law and adjudication'
Craig
44
What does Elliot note is the main risk arising out of Pham?
WU operated as an important safeguard against judicial overreach
45
Who argued for a 'hierarchy of constitutional norms' after HS2?
M Elliot
46
What is the communautaire approach through Costa v ENEL?
Contractarian, functional, egalitarian and analytical reasons for accepting ECJ supremacy
47
What was said at para 61 in Osborn?
The courts should continue to develop CL in areas falling within the ECHR
48
HoLCC on Legislative and Regulatory Reform Bill 2006
'Further safeguards'
48
Treasury and Civil Service Committee
'Those who are to make decisions should be publicly answerable for them'
49
Who holds a 'construction' rather than 'revolution' view of Factortame?
Wade
50
Downing Street Declaration (1993)
Recognised legitimacy of nationalist tradition in NI
51
What did Dominic Grieve argue about the HRA and the 'living instrument'?
He highlights how statutes are 'always speaking'
52
Who levelled criticism against the Torie government for their view of the ECHR as a 'living instrument' in a negative light?
Dominic Grieve
54
Who described Scotland as the 'catalyst for change', criticising the 'two main parties' apathy to the fact that ruling by consent in Scotland is becoming more and more untenable?
Deborah Orr
55
What parts does Raz add to Dicey's conception of RoL?
Natural justice, independent judiciary, no discretion by private agencies to divert the law, stable and courts have review powers
57
McKay Commission
Suggested EVEL, only allowing English laws to pass with a majority
59
What journalist for the Guardian argued a federal state is an inevitable outcome for the UK?
Alan Posener
61
What did John Curtis say of the West Lothian question?
A 'form of English nationalism... beginning to emerge'
62
10th Report of the HoC EU Scrutiny Commission
Dual acceptance of treaties needed in UK. No higher legal order than P - EU given by virtue of s.2 and s.3 ECA DOMESTIC legislation.
63
What remains undefined in the CRA and down to interpretation?
Judicial independence
64
What principle was given to the courts through HRA?
Principle of construction
65
What did Munby J say in Karas?
'at best an unacceptable disregard' of RoL and 'at worst an unacceptable disdain
66
What voting system did the Green Party propose?
Proportional representation to allow greens to have a voice
67
Who highlighted Dicey's fundamental principles were contradictory?
Jan-Erik Lane
68
Lord Toulson in Kennedy v Charity Commission
'it was not the purpose of the HRA that the CL should become an ossuary'
70
Sunning dale Agreement (1973)
Attempt to form power-sharing NI Exec and cross-border Council of Ireland.
71
What did Marina Hyde suggest about Tory planners?
They were looking into the constitutional possibilities of Cameron just staying on in Number 10, arguing no one else won either
72
What kid of legislation gives legislativ powers to the executive, against SP?
Delegated legislation
73
Who satirised the British constitution because of reliance on a letter written to the Times in 1950, supposedly from the private minister of George VI?
Marina Hyde, The Guardian
74
What judge in particular in 2014 and 2015 has advocated open justice and common law first?
Lord Reed (Osborne, Para 61)
76
Liversidge v Anderson
Lord Atkin argued the application of laws does not change depending on the social context (i.e. no different in war time - but Wednesbury?)
77
1998 Referendum in eNGLAND
Directly elected administrative body for Greater London - 3/4 of the vote allowed it to pass, but only 1/3 of population voted
79
Who saw HS2 as a 'vision of the British constitution substantially at odds with Diceyan orthodoxy'
Elliott
80
How were the normative and legality principles by Craig taken even further than Simms in HS2?
Not only common law rights, but constitutional statutes apply - need express words to overrule them
81
Campaign for the North
Regional govt for North of England with tax-raising powers and responsibility for policy areas
82
What party in particular, speaking to Brand, argued for a people's constitutional convention?
Green Party
83
Van Duyn v Home Office
Scientologist
84
What Torie suggested that, despite the only vague reference to a BoR in the Torie manifesto, the ECHR withdrawal is still a real possibility?
Lord Faulks
86
Who argued that the courts in Factortame were merely determining what existing constitutional order required, rather than affirming a kind of rule of recognition
TRS Allen
87
What did Alan Posener argue about pulling out of the EU?
It would be 'the end of peace on the continent' and the EU would be 'doomed'
88
Jowell on RoL
RoL as a principle of institutional morality, constraining uninhibited exercise of governmental power
89
Who said in Kennedy v Charity Commission that 'it was not the purpose of the HRA that the CL should become an ossuary'?
Lord Toulson
90
Why did Sales advocate a bifurcated view of public law?
proportionality may not be universally applicable, and ultra vires governs JR so can only go past this if statute confirms it - therefore, too radical to suggest P intended JR through proportionality outwith the HRA
92
Who said that an English P would 'dwarf all other institutions'?
Lord Falconer
94
Who argued 'judges do and must make law in the gaps left by P'?
Lord Steyn in Brown
95
What were the two major issues Lord Faulks highlighted the Tories had with HRA
S.2 and Art.46
97
"The Implications of Devolution for England" Chapter 4
Conservative's hybrid approach to EVEL: committee stage and veto
98
What case qualified the decision in Pepper v Hart?
Wilson
100
HoLCC 2010-12
Formal procedures for constitutional reform; constitutional impact, consultation, g&w papers and pre/post scrutiny
101
PASC 2013, "Truth to Power: How CS Reform can Succeed"
Conflict with N-T through CSRP and s.10(2) CRAG. Haldane doctrine vital to hold executive to account and at core of relationship - but still appropriate? Joint committee of both on CS
102
What case showed the courts refusing to convict because fair trial fundamental to RoL?
ex p Bennett
103
Name at least two times when RoL has affected the interpretation of statutes
Simms, Pierson, CRA 2005, Liverside v Anderson
104
Sir David Williams
"Legislative devolution is federalism without the courage of its convictions"
105
What did Alan Trend welcome in particular about the White Paper, "Better Governance for Britain"
The separate legislature and executive it proposed
106
Who called for abolishment of the HoL instead of the Life Peerages Act
Hugh Gaitskell
107
Who said in Factortame that it was 'local recognition' of the constitutional state of things, suggesting support for TRS Allen?
Lord Bridge
109
"Your Right to Know' White Paper
Preceded FOIA - 'benchmark yet to be obtained' (Lord McNally)
110
What is the normative principle set down by Craig?
Continuing PS - can repeal any statute
111
"Scotland in the UK: An Enduring Settlement"
Clause 1 - Scottish P on a permanent basis. Clause 2 - Sewel Conventions
112
Who highlighted how the Ministerial Code clearly states it is the duty of ministers and CS to respect international obligations?
Dominic Grieve
113
What is Wade's view of Factortame?
Construction view - 'catalyst for a partial change in the rule of recognition', adapting political fact of PS to new situation
115
Who said 'the HoL has no place in a democratic society'
Nicola Sturgeon in a speech in Glasgow
117
Which Scottish figure stated that 'federalism is the outcome of all of this'?
Secretary of State for Scotland, Alistair Carmichael
118
What quote of Irvine appears to suggest he rejects any injection of substantive RoL?
courts should not make decisions 'on the basis of their view of the importance of the UK's standing as a good global citizen'
119
Dworkin on RoL
RoL needs to minimally conform to autonomy, intrinsically including individual respect for persons
120
In what case did Denning stretch the meaning of a statute to make it compatible with EU law?
Macarthys v Smith
121
Name four people/bodies who included autonomy/human rights in their RoL
Bingham, Dworkin, Venice Commission and TRS Allen
122
What does s.3 of the ECA allow?
Disapplication of a law in conflict with EU law
123
Lord Faulks on Art.46
'subcontracted' human-rights, rather than having 'brought rights home'
124
Who criticised the courts on the Ullah principle?
Lord Irvine at the UCL Judicial Institute
126
In what newspaper did they argue Miliband may be showing an outright opposition to the principle of coalition?
Guardian
127
St Andrew's Day Agreement (2006)
First Assembly since Belfast Agreement (1998) to complete full term
128
JDB Mitchell on ECA
expressed concern that courts may see EU law as 'autonomously entrenched' rather than taking effect through AoPs
129
Who believed Dicey's RoL theory was formal?
Craig
130
What two academics agree that notions of devolution and federalism are not wholly distinct but rest on a continuum?
Saunders and Elliot
132
Kilbrandon Commission
Rejected federalism but split on devolution
133
Who argued Diceys exclusion of wide discretionary authority in govt fails to acknowledge 20th century reality?
Drewry
134
Civil Service Reform Plan 2012 issues
CS Commission resisted substituting ministerial choice for PM power to veto, but political pressure caused them to cede ground
135
Who suggested EU position is by reference to ECA (and EUA), and 'other features of the domestic constitutional landscape' with which it might conflict
Elliott
136
HoC PASC
Need for convention to discuss unfinished business of devolution and possibly wider reform
136
MP Peter Hain
Stopping Scottish/Welsh MPs from voting/creating English P will break up the union
137
What do saunders and elliot argue about federalism?
notions of devolution and federalism are not wholly distinct but rest on a continuum
138
Why is the principle of construction given by HRA difficult?
de facto insertion of additional clauses is hard to reconcile with traditional SP
139
Who argued Pepper v Hart amounts to enforcing 'unenacted intentions', undermining rationale and integrity of the legislative process?
Kavanagh
140
Coalition Agreement for Stability and Reform
'No constitutional difference... but practices need to reflect' first peacetime coalition since 1930s
141
What four parts are there to Dicey's conception of the RoL?
(1) No man above the law, (2) regular application of the law, (3) rights are those people actually have and (4) sufficiently clear, prospective and accessible
142
What did Craig note about Dworkin's RoL?
'nothing more or less than a synonym for a rights based theory of law and adjudication'
143
HoLCC 2012 on CS
CS are 'fully accountable to ministers , and ministers are fully accountable to P', but new factors (ombudsmen, Select Committees) and new questions of personal accountability - SCs can express criticism over particular CS and recommend disciplinary procedures
144
Who argued that if the UK became a federal state, Carlisle would be the natural centre point because Westminster suffers from weak leadership?
Tom Devine
145
In what case did Lord Atkin argue the application of laws does not change depending on the social context
Liversidge v Anderson
147
What academic highlights how PS is only an ENGLISH theory?
Elliot
148
What did Lord Reed argue in Pham?
Uses interpretative methdology to suggest courts interpret legislation interfering with important rights as requiring no more than objectively necessary, using Leech and Daly to show this
149
What does Elliot think the Torie government have got wrong in their view on BoR?
That there is a blank canvas behind the HRA - but Osborn shows there is not
150
Who was the separation of powers first developed by?
Aristotle and John Locke
151
The Wakeham Report 2000
HoL Reform - 550, majority appointed (Cash for Peerages), remove Weatherhill
152
What is the legality principle set down by Craig?
Statutory interpretation tool requiring express words for infringing CL rights
153
Who argued RoL intrinsically include indvidual respect and concern for persons?
Dworkin
154
What two ways does Tomkins highlight s.18 of the EUA is limited?
Only attacks EU law, but most controversial from ECJ rulings, and pays no attention to other challenges (human rights/common law)
155
Who highlighted two ways s.18 EUA is limited?
Tomkins
