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Public Law - ACADEMICS Flashcards

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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

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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’

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1
Q

What section of the CRA guarantees judicial independence through LC function?

A

S.3

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1
Q

What protocol of the ECHR allows EU to accede to the ECHR?

A

Protocol 14

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1
Q

What question did Barber think RoL asks?

A

‘What does it mean to be governed by law rather than by men’

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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

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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.

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2
Q

2004 Northern England devo referendums

A

Decisive rejection of political power to English Regional Assemblies

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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)

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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

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2
Q

TRS Allen on RoL

A

law needs to be clear to respect autonomy, and thus requires other parts such as substantive equality

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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

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3
Q

In what case did the courts explicitly refuse to accept a common law duty to give reasons?

A

Hasan

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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

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4
Q

What case seems to show the Lords advocating P in domestic law?

A

Pham

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5
Q

Who argued, with Hickman and Elliot, that WU should coexist with P?

A

Sales

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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

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6
Q

Van Duyn v Home Office ratio

A

Fundamental freedoms have direct effect

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6
Q

What case established the supremacy of EU law?

A

Costa v ENEL

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6
Q

How does Dworkin distinguish between the formal and substantive conception of RoL?

A

‘Rule book conception’ and ‘rights conception’

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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.

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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

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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

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10
Q

Who argued that stopping Scottish/Welsh MPs from voting/creating English P will break up the union?

A

Peter Hain MP

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11
Q

Who argued the UK would end up as a confederal state?

A

Rafael Bear

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12
Q

What did Lord Upjohn say in Padfield?

A

No reasons given may lead the court to conclude that ‘he had no good reason at all’

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13
Q

Why did the Sunningdale Agreement collapse?

A

General strike and unionist opposition

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14
Q

Richard Commission (2002)

A

2004 Report proposed primary legislative powers on all matters not explicitly reserved

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15
Q

HoL Reform Bill 2012

A

240 elected, 60 appointed, 10 years. Abandoned in August 2012

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16
Q

St David’s Day Process (2015)

A

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

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17
Q

What did Jowell say of RoL

A

It is a form of institutional morality, acting as a constraint on the uninhibited exercise of government powers

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19
Q

Who was sceptical about ‘personal prerogatives’ of the Queen given the conventions and procedures already established?

A

Blackburn

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20
Q

Who argued HRA s.10 gives too much power to G at the expense of P?

A

Loveland

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21
Q

Who believes in RoL as a principle of institutional morality, constrining uninhibited exercise of governmental power?

A

Jowell

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21
Q

What does Elliot suggest about interpreting legislation and pragmatism?

A

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

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23
Q

Who argued the law needs to be clear to respect autonomy, so other equally important requirements (e.g. substantive equality) are needed in RoL?

A

TRS Allen

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24
Q

Who argued the EU would be ‘doomed’ and it would be the ‘end of peace on the continent’ if Tories leave EU?

A

Alan Posener

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25
Q

Who highlighted how the White Paper, “Better Governance for Wales” would still limit the legislative powers to the current powers the Assembly already has

A

Alan Trend

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26
Q

What was the first acknowledgment of manner and form entrenchment after Thoburn?

A

H v Lord Advocate - no repeal of Scotland Act unless expressly as ‘fundamental constitutional nature’

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27
Q

What does s.2(4) ECA allow?

A

Allows EU law to prevail over domestic law

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27
Q

Who argued RoL needs to minimally conform to autonoy, intrinsically including individual respect for persons?

A

Dworkin

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28
Q

“Legislative devolution is federalism without the courage of its convictions”

A

Sir David Williams

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29
Q

Macarthys Ltd v Smith

A

Equal pay

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30
Q

What did Craig argue about ECJ supremacy?

A

Communautaire approach through Costa v ENEL

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31
Q

Lord Falconer on devo

A

English P would ‘dwarf all other institutions’

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32
Q

Who expressed concern that courts may see EU law as ‘autonomously entrenched’ rather than taking effect through AoPs?

A

JDB Mitchell

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32
Q

Who looked into the possibility of entrenching a British BoR?

A

Joint Committee on Human Rights

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34
Q

Karas

A

Next day deportation

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36
Q

Who termed our electoral system ‘absurd’ and called for reform?

A

Owen Jones

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36
Q

Kavanagh

A

Pepper v Hart amounts to enforcing ‘unenacted intentions’, undermining rationale and integrity of the legislative process

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37
Q

Name at least two times when RoL has prohibited the action of officials

A

Karas, Entick v Carrington, Cornerhouse, Ex p Bennett, Golder v UK

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38
Q

Who sarcastically referred to Blair as ‘President Blair’?

A

Timothy Ash in the Guardian

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39
Q

HoLCC on arms length bodies

A

Threefold classification - non-ministerial, executive and non-departmental

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39
Q

Who said that no reasons given may lead the court to conclude that ‘he had no good reason at all’

A

Lord Upjohn in Padfield

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40
Q

Who believed Dicey’s RoL was substantive?

A

TRS Allen - used it to base his own conception

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41
Q

Government response to HoLCC 2010-12

A

Unnecessary and not qualitatively different, impossible to define

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41
Q

Who treated Wade’s political fact of rule of recognition with ‘respectful reserve’?

A

TRS Allen

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42
Q

Anglo-Irish Agreement (1985)

A

G and Irish G agreed to cooperate on justice and political progress

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43
Q

Who argued Dworkin’s RoL makes it ‘nothing more or less than a synonym for a rights based theory of law and adjudication’

A

Craig

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44
Q

What does Elliot note is the main risk arising out of Pham?

A

WU operated as an important safeguard against judicial overreach

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45
Q

Who argued for a ‘hierarchy of constitutional norms’ after HS2?

A

M Elliot

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46
Q

What is the communautaire approach through Costa v ENEL?

A

Contractarian, functional, egalitarian and analytical reasons for accepting ECJ supremacy

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47
Q

What was said at para 61 in Osborn?

A

The courts should continue to develop CL in areas falling within the ECHR

48
Q

HoLCC on Legislative and Regulatory Reform Bill 2006

A

‘Further safeguards’

48
Q

Treasury and Civil Service Committee

A

‘Those who are to make decisions should be publicly answerable for them’

49
Q

Who holds a ‘construction’ rather than ‘revolution’ view of Factortame?

A

Wade

50
Q

Downing Street Declaration (1993)

A

Recognised legitimacy of nationalist tradition in NI

51
Q

What did Dominic Grieve argue about the HRA and the ‘living instrument’?

A

He highlights how statutes are ‘always speaking’

52
Q

Who levelled criticism against the Torie government for their view of the ECHR as a ‘living instrument’ in a negative light?

A

Dominic Grieve

54
Q

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?

A

Deborah Orr

55
Q

What parts does Raz add to Dicey’s conception of RoL?

A

Natural justice, independent judiciary, no discretion by private agencies to divert the law, stable and courts have review powers

57
Q

McKay Commission

A

Suggested EVEL, only allowing English laws to pass with a majority

59
Q

What journalist for the Guardian argued a federal state is an inevitable outcome for the UK?

A

Alan Posener

61
Q

What did John Curtis say of the West Lothian question?

A

A ‘form of English nationalism… beginning to emerge’

62
Q

10th Report of the HoC EU Scrutiny Commission

A

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
Q

What remains undefined in the CRA and down to interpretation?

A

Judicial independence

64
Q

What principle was given to the courts through HRA?

A

Principle of construction

65
Q

What did Munby J say in Karas?

A

‘at best an unacceptable disregard’ of RoL and ‘at worst an unacceptable disdain

66
Q

What voting system did the Green Party propose?

A

Proportional representation to allow greens to have a voice

67
Q

Who highlighted Dicey’s fundamental principles were contradictory?

A

Jan-Erik Lane

68
Q

Lord Toulson in Kennedy v Charity Commission

A

‘it was not the purpose of the HRA that the CL should become an ossuary’

70
Q

Sunning dale Agreement (1973)

A

Attempt to form power-sharing NI Exec and cross-border Council of Ireland.

71
Q

What did Marina Hyde suggest about Tory planners?

A

They were looking into the constitutional possibilities of Cameron just staying on in Number 10, arguing no one else won either

72
Q

What kid of legislation gives legislativ powers to the executive, against SP?

A

Delegated legislation

73
Q

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?

A

Marina Hyde, The Guardian

74
Q

What judge in particular in 2014 and 2015 has advocated open justice and common law first?

A

Lord Reed (Osborne, Para 61)

76
Q

Liversidge v Anderson

A

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
Q

1998 Referendum in eNGLAND

A

Directly elected administrative body for Greater London - 3/4 of the vote allowed it to pass, but only 1/3 of population voted

79
Q

Who saw HS2 as a ‘vision of the British constitution substantially at odds with Diceyan orthodoxy’

A

Elliott

80
Q

How were the normative and legality principles by Craig taken even further than Simms in HS2?

A

Not only common law rights, but constitutional statutes apply - need express words to overrule them

81
Q

Campaign for the North

A

Regional govt for North of England with tax-raising powers and responsibility for policy areas

82
Q

What party in particular, speaking to Brand, argued for a people’s constitutional convention?

A

Green Party

83
Q

Van Duyn v Home Office

A

Scientologist

84
Q

What Torie suggested that, despite the only vague reference to a BoR in the Torie manifesto, the ECHR withdrawal is still a real possibility?

A

Lord Faulks

86
Q

Who argued that the courts in Factortame were merely determining what existing constitutional order required, rather than affirming a kind of rule of recognition

A

TRS Allen

87
Q

What did Alan Posener argue about pulling out of the EU?

A

It would be ‘the end of peace on the continent’ and the EU would be ‘doomed’

88
Q

Jowell on RoL

A

RoL as a principle of institutional morality, constraining uninhibited exercise of governmental power

89
Q

Who said in Kennedy v Charity Commission that ‘it was not the purpose of the HRA that the CL should become an ossuary’?

A

Lord Toulson

90
Q

Why did Sales advocate a bifurcated view of public law?

A

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
Q

Who said that an English P would ‘dwarf all other institutions’?

A

Lord Falconer

94
Q

Who argued ‘judges do and must make law in the gaps left by P’?

A

Lord Steyn in Brown

95
Q

What were the two major issues Lord Faulks highlighted the Tories had with HRA

A

S.2 and Art.46

97
Q

“The Implications of Devolution for England” Chapter 4

A

Conservative’s hybrid approach to EVEL: committee stage and veto

98
Q

What case qualified the decision in Pepper v Hart?

A

Wilson

100
Q

HoLCC 2010-12

A

Formal procedures for constitutional reform; constitutional impact, consultation, g&w papers and pre/post scrutiny

101
Q

PASC 2013, “Truth to Power: How CS Reform can Succeed”

A

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
Q

What case showed the courts refusing to convict because fair trial fundamental to RoL?

A

ex p Bennett

103
Q

Name at least two times when RoL has affected the interpretation of statutes

A

Simms, Pierson, CRA 2005, Liverside v Anderson

104
Q

Sir David Williams

A

“Legislative devolution is federalism without the courage of its convictions”

105
Q

What did Alan Trend welcome in particular about the White Paper, “Better Governance for Britain”

A

The separate legislature and executive it proposed

106
Q

Who called for abolishment of the HoL instead of the Life Peerages Act

A

Hugh Gaitskell

107
Q

Who said in Factortame that it was ‘local recognition’ of the constitutional state of things, suggesting support for TRS Allen?

A

Lord Bridge

109
Q

“Your Right to Know’ White Paper

A

Preceded FOIA - ‘benchmark yet to be obtained’ (Lord McNally)

110
Q

What is the normative principle set down by Craig?

A

Continuing PS - can repeal any statute

111
Q

“Scotland in the UK: An Enduring Settlement”

A

Clause 1 - Scottish P on a permanent basis. Clause 2 - Sewel Conventions

112
Q

Who highlighted how the Ministerial Code clearly states it is the duty of ministers and CS to respect international obligations?

A

Dominic Grieve

113
Q

What is Wade’s view of Factortame?

A

Construction view - ‘catalyst for a partial change in the rule of recognition’, adapting political fact of PS to new situation

115
Q

Who said ‘the HoL has no place in a democratic society’

A

Nicola Sturgeon in a speech in Glasgow

117
Q

Which Scottish figure stated that ‘federalism is the outcome of all of this’?

A

Secretary of State for Scotland, Alistair Carmichael

118
Q

What quote of Irvine appears to suggest he rejects any injection of substantive RoL?

A

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
Q

Dworkin on RoL

A

RoL needs to minimally conform to autonomy, intrinsically including individual respect for persons

120
Q

In what case did Denning stretch the meaning of a statute to make it compatible with EU law?

A

Macarthys v Smith

121
Q

Name four people/bodies who included autonomy/human rights in their RoL

A

Bingham, Dworkin, Venice Commission and TRS Allen

122
Q

What does s.3 of the ECA allow?

A

Disapplication of a law in conflict with EU law

123
Q

Lord Faulks on Art.46

A

‘subcontracted’ human-rights, rather than having ‘brought rights home’

124
Q

Who criticised the courts on the Ullah principle?

A

Lord Irvine at the UCL Judicial Institute

126
Q

In what newspaper did they argue Miliband may be showing an outright opposition to the principle of coalition?

A

Guardian

127
Q

St Andrew’s Day Agreement (2006)

A

First Assembly since Belfast Agreement (1998) to complete full term

128
Q

JDB Mitchell on ECA

A

expressed concern that courts may see EU law as ‘autonomously entrenched’ rather than taking effect through AoPs

129
Q

Who believed Dicey’s RoL theory was formal?

A

Craig

130
Q

What two academics agree that notions of devolution and federalism are not wholly distinct but rest on a continuum?

A

Saunders and Elliot

132
Q

Kilbrandon Commission

A

Rejected federalism but split on devolution

133
Q

Who argued Diceys exclusion of wide discretionary authority in govt fails to acknowledge 20th century reality?

A

Drewry

134
Q

Civil Service Reform Plan 2012 issues

A

CS Commission resisted substituting ministerial choice for PM power to veto, but political pressure caused them to cede ground

135
Q

Who suggested EU position is by reference to ECA (and EUA), and ‘other features of the domestic constitutional landscape’ with which it might conflict

A

Elliott

136
Q

HoC PASC

A

Need for convention to discuss unfinished business of devolution and possibly wider reform

136
Q

MP Peter Hain

A

Stopping Scottish/Welsh MPs from voting/creating English P will break up the union

137
Q

What do saunders and elliot argue about federalism?

A

notions of devolution and federalism are not wholly distinct but rest on a continuum

138
Q

Why is the principle of construction given by HRA difficult?

A

de facto insertion of additional clauses is hard to reconcile with traditional SP

139
Q

Who argued Pepper v Hart amounts to enforcing ‘unenacted intentions’, undermining rationale and integrity of the legislative process?

A

Kavanagh

140
Q

Coalition Agreement for Stability and Reform

A

‘No constitutional difference… but practices need to reflect’ first peacetime coalition since 1930s

141
Q

What four parts are there to Dicey’s conception of the RoL?

A

(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
Q

What did Craig note about Dworkin’s RoL?

A

‘nothing more or less than a synonym for a rights based theory of law and adjudication’

143
Q

HoLCC 2012 on CS

A

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
Q

Who argued that if the UK became a federal state, Carlisle would be the natural centre point because Westminster suffers from weak leadership?

A

Tom Devine

145
Q

In what case did Lord Atkin argue the application of laws does not change depending on the social context

A

Liversidge v Anderson

147
Q

What academic highlights how PS is only an ENGLISH theory?

A

Elliot

148
Q

What did Lord Reed argue in Pham?

A

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
Q

What does Elliot think the Torie government have got wrong in their view on BoR?

A

That there is a blank canvas behind the HRA - but Osborn shows there is not

150
Q

Who was the separation of powers first developed by?

A

Aristotle and John Locke

151
Q

The Wakeham Report 2000

A

HoL Reform - 550, majority appointed (Cash for Peerages), remove Weatherhill

152
Q

What is the legality principle set down by Craig?

A

Statutory interpretation tool requiring express words for infringing CL rights

153
Q

Who argued RoL intrinsically include indvidual respect and concern for persons?

A

Dworkin

154
Q

What two ways does Tomkins highlight s.18 of the EUA is limited?

A

Only attacks EU law, but most controversial from ECJ rulings, and pays no attention to other challenges (human rights/common law)

155
Q

Who highlighted two ways s.18 EUA is limited?

A

Tomkins

Law First Year (24 decks)

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