Public Law - ACADEMICS Flashcards
2011 Referendum in Wales
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
What did Kavanagh say of the decision in Wilson?
Either returned courts to usual function or increased their powers by retaining choice in choosing enacted or ‘unenacted legislation’
What section of the CRA guarantees judicial independence through LC function?
S.3
What protocol of the ECHR allows EU to accede to the ECHR?
Protocol 14
What question did Barber think RoL asks?
‘What does it mean to be governed by law rather than by men’
Who said that the law needs to be clear to respect autonomy, and thus requires other parts such as substantive equality?
TRS Allen
“A Programme for Progress” Labour Peers
HoL Reform - 450, remove hereditary, force retirement at 80 (see Hand), all working peers, 3/5, no Lords majority, HoL Appointments Commission in statute.
2004 Northern England devo referendums
Decisive rejection of political power to English Regional Assemblies
“Better Governance for Wales” (2005)
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)
Name two cases where RoL has affected the interpretation of statutes
Pierson and Simms - injection of substantive in Simms, need to expressly infringe in Pierson
TRS Allen on RoL
law needs to be clear to respect autonomy, and thus requires other parts such as substantive equality
What did Vernon Bogdanor say about the British Constitution
The old was based on PS, the new is based on the idea of a constitutional state based on separation of powers
In what case did the courts explicitly refuse to accept a common law duty to give reasons?
Hasan
What are two reasons why Elliot thinks the Torie HRA plans to be unlikely?
Coalition, where neither Lib Dem nor Labour support withdrawal, and devolution matters
What case seems to show the Lords advocating P in domestic law?
Pham
Who argued, with Hickman and Elliot, that WU should coexist with P?
Sales
Who highlighted the issue of EVEL with a majority SNP and labour government - minority in England unable to pass England-only legislation?
Deborah Orr
Van Duyn v Home Office ratio
Fundamental freedoms have direct effect
What case established the supremacy of EU law?
Costa v ENEL
How does Dworkin distinguish between the formal and substantive conception of RoL?
‘Rule book conception’ and ‘rights conception’
“Protecting Human Rights in the UK”
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.
How does Drewry argue Dicey’s RoL does not match 20th century
Prohibiting wide discretionary authority does not match with 20th century interventionist state
Who said in Karas that it was ‘at best an unacceptable disregard’ of RoL and ‘at worst an unacceptable disdain?
Munby J
Who argued that stopping Scottish/Welsh MPs from voting/creating English P will break up the union?
Peter Hain MP
Who argued the UK would end up as a confederal state?
Rafael Bear
What did Lord Upjohn say in Padfield?
No reasons given may lead the court to conclude that ‘he had no good reason at all’
Why did the Sunningdale Agreement collapse?
General strike and unionist opposition
Richard Commission (2002)
2004 Report proposed primary legislative powers on all matters not explicitly reserved
HoL Reform Bill 2012
240 elected, 60 appointed, 10 years. Abandoned in August 2012
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
What did Jowell say of RoL
It is a form of institutional morality, acting as a constraint on the uninhibited exercise of government powers
Who was sceptical about ‘personal prerogatives’ of the Queen given the conventions and procedures already established?
Blackburn
Who argued HRA s.10 gives too much power to G at the expense of P?
Loveland
Who believes in RoL as a principle of institutional morality, constrining uninhibited exercise of governmental power?
Jowell
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
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
Who argued the EU would be ‘doomed’ and it would be the ‘end of peace on the continent’ if Tories leave EU?
Alan Posener
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
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’
What does s.2(4) ECA allow?
Allows EU law to prevail over domestic law
Who argued RoL needs to minimally conform to autonoy, intrinsically including individual respect for persons?
Dworkin
“Legislative devolution is federalism without the courage of its convictions”
Sir David Williams
Macarthys Ltd v Smith
Equal pay
What did Craig argue about ECJ supremacy?
Communautaire approach through Costa v ENEL
Lord Falconer on devo
English P would ‘dwarf all other institutions’
Who expressed concern that courts may see EU law as ‘autonomously entrenched’ rather than taking effect through AoPs?
JDB Mitchell
Who looked into the possibility of entrenching a British BoR?
Joint Committee on Human Rights
Karas
Next day deportation
Who termed our electoral system ‘absurd’ and called for reform?
Owen Jones
Kavanagh
Pepper v Hart amounts to enforcing ‘unenacted intentions’, undermining rationale and integrity of the legislative process
Name at least two times when RoL has prohibited the action of officials
Karas, Entick v Carrington, Cornerhouse, Ex p Bennett, Golder v UK
Who sarcastically referred to Blair as ‘President Blair’?
Timothy Ash in the Guardian
HoLCC on arms length bodies
Threefold classification - non-ministerial, executive and non-departmental
Who said that no reasons given may lead the court to conclude that ‘he had no good reason at all’
Lord Upjohn in Padfield
Who believed Dicey’s RoL was substantive?
TRS Allen - used it to base his own conception
Government response to HoLCC 2010-12
Unnecessary and not qualitatively different, impossible to define
Who treated Wade’s political fact of rule of recognition with ‘respectful reserve’?
TRS Allen
Anglo-Irish Agreement (1985)
G and Irish G agreed to cooperate on justice and political progress
Who argued Dworkin’s RoL makes it ‘nothing more or less than a synonym for a rights based theory of law and adjudication’
Craig
What does Elliot note is the main risk arising out of Pham?
WU operated as an important safeguard against judicial overreach
Who argued for a ‘hierarchy of constitutional norms’ after HS2?
M Elliot
What is the communautaire approach through Costa v ENEL?
Contractarian, functional, egalitarian and analytical reasons for accepting ECJ supremacy
What was said at para 61 in Osborn?
The courts should continue to develop CL in areas falling within the ECHR
HoLCC on Legislative and Regulatory Reform Bill 2006
‘Further safeguards’
Treasury and Civil Service Committee
‘Those who are to make decisions should be publicly answerable for them’
Who holds a ‘construction’ rather than ‘revolution’ view of Factortame?
Wade
Downing Street Declaration (1993)
Recognised legitimacy of nationalist tradition in NI
What did Dominic Grieve argue about the HRA and the ‘living instrument’?
He highlights how statutes are ‘always speaking’
Who levelled criticism against the Torie government for their view of the ECHR as a ‘living instrument’ in a negative light?
Dominic Grieve
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
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
McKay Commission
Suggested EVEL, only allowing English laws to pass with a majority
What journalist for the Guardian argued a federal state is an inevitable outcome for the UK?
Alan Posener
What did John Curtis say of the West Lothian question?
A ‘form of English nationalism… beginning to emerge’
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.
What remains undefined in the CRA and down to interpretation?
Judicial independence
What principle was given to the courts through HRA?
Principle of construction
What did Munby J say in Karas?
‘at best an unacceptable disregard’ of RoL and ‘at worst an unacceptable disdain
What voting system did the Green Party propose?
Proportional representation to allow greens to have a voice
Who highlighted Dicey’s fundamental principles were contradictory?
Jan-Erik Lane
Lord Toulson in Kennedy v Charity Commission
‘it was not the purpose of the HRA that the CL should become an ossuary’
Sunning dale Agreement (1973)
Attempt to form power-sharing NI Exec and cross-border Council of Ireland.
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
What kid of legislation gives legislativ powers to the executive, against SP?
Delegated legislation
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
What judge in particular in 2014 and 2015 has advocated open justice and common law first?
Lord Reed (Osborne, Para 61)
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?)
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
Who saw HS2 as a ‘vision of the British constitution substantially at odds with Diceyan orthodoxy’
Elliott
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
Campaign for the North
Regional govt for North of England with tax-raising powers and responsibility for policy areas
What party in particular, speaking to Brand, argued for a people’s constitutional convention?
Green Party
Van Duyn v Home Office
Scientologist
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
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
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’
Jowell on RoL
RoL as a principle of institutional morality, constraining uninhibited exercise of governmental power
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
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
Who said that an English P would ‘dwarf all other institutions’?
Lord Falconer
Who argued ‘judges do and must make law in the gaps left by P’?
Lord Steyn in Brown
What were the two major issues Lord Faulks highlighted the Tories had with HRA
S.2 and Art.46
“The Implications of Devolution for England” Chapter 4
Conservative’s hybrid approach to EVEL: committee stage and veto
What case qualified the decision in Pepper v Hart?
Wilson
HoLCC 2010-12
Formal procedures for constitutional reform; constitutional impact, consultation, g&w papers and pre/post scrutiny
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
What case showed the courts refusing to convict because fair trial fundamental to RoL?
ex p Bennett
Name at least two times when RoL has affected the interpretation of statutes
Simms, Pierson, CRA 2005, Liverside v Anderson
Sir David Williams
“Legislative devolution is federalism without the courage of its convictions”
What did Alan Trend welcome in particular about the White Paper, “Better Governance for Britain”
The separate legislature and executive it proposed
Who called for abolishment of the HoL instead of the Life Peerages Act
Hugh Gaitskell
Who said in Factortame that it was ‘local recognition’ of the constitutional state of things, suggesting support for TRS Allen?
Lord Bridge
“Your Right to Know’ White Paper
Preceded FOIA - ‘benchmark yet to be obtained’ (Lord McNally)
What is the normative principle set down by Craig?
Continuing PS - can repeal any statute
“Scotland in the UK: An Enduring Settlement”
Clause 1 - Scottish P on a permanent basis. Clause 2 - Sewel Conventions
Who highlighted how the Ministerial Code clearly states it is the duty of ministers and CS to respect international obligations?
Dominic Grieve
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
Who said ‘the HoL has no place in a democratic society’
Nicola Sturgeon in a speech in Glasgow
Which Scottish figure stated that ‘federalism is the outcome of all of this’?
Secretary of State for Scotland, Alistair Carmichael
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’
Dworkin on RoL
RoL needs to minimally conform to autonomy, intrinsically including individual respect for persons
In what case did Denning stretch the meaning of a statute to make it compatible with EU law?
Macarthys v Smith
Name four people/bodies who included autonomy/human rights in their RoL
Bingham, Dworkin, Venice Commission and TRS Allen
What does s.3 of the ECA allow?
Disapplication of a law in conflict with EU law
Lord Faulks on Art.46
‘subcontracted’ human-rights, rather than having ‘brought rights home’
Who criticised the courts on the Ullah principle?
Lord Irvine at the UCL Judicial Institute
In what newspaper did they argue Miliband may be showing an outright opposition to the principle of coalition?
Guardian
St Andrew’s Day Agreement (2006)
First Assembly since Belfast Agreement (1998) to complete full term
JDB Mitchell on ECA
expressed concern that courts may see EU law as ‘autonomously entrenched’ rather than taking effect through AoPs
Who believed Dicey’s RoL theory was formal?
Craig
What two academics agree that notions of devolution and federalism are not wholly distinct but rest on a continuum?
Saunders and Elliot
Kilbrandon Commission
Rejected federalism but split on devolution
Who argued Diceys exclusion of wide discretionary authority in govt fails to acknowledge 20th century reality?
Drewry
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
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
HoC PASC
Need for convention to discuss unfinished business of devolution and possibly wider reform
MP Peter Hain
Stopping Scottish/Welsh MPs from voting/creating English P will break up the union
What do saunders and elliot argue about federalism?
notions of devolution and federalism are not wholly distinct but rest on a continuum
Why is the principle of construction given by HRA difficult?
de facto insertion of additional clauses is hard to reconcile with traditional SP
Who argued Pepper v Hart amounts to enforcing ‘unenacted intentions’, undermining rationale and integrity of the legislative process?
Kavanagh
Coalition Agreement for Stability and Reform
‘No constitutional difference… but practices need to reflect’ first peacetime coalition since 1930s
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
What did Craig note about Dworkin’s RoL?
‘nothing more or less than a synonym for a rights based theory of law and adjudication’
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
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
In what case did Lord Atkin argue the application of laws does not change depending on the social context
Liversidge v Anderson
What academic highlights how PS is only an ENGLISH theory?
Elliot
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
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
Who was the separation of powers first developed by?
Aristotle and John Locke
The Wakeham Report 2000
HoL Reform - 550, majority appointed (Cash for Peerages), remove Weatherhill
What is the legality principle set down by Craig?
Statutory interpretation tool requiring express words for infringing CL rights
Who argued RoL intrinsically include indvidual respect and concern for persons?
Dworkin
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)
Who highlighted two ways s.18 EUA is limited?
Tomkins
