Public Law and Facts

Question 1

Justiciable

Answer 1

is it capable of having justice done to it, should judges intervene?

Question 2

The concept of the rule of law

Answer 2

law must be certain made properly, contain no arbitrary exercise of power, provide equality before the law and be independent and impartial.

Question 3

Magna carta

Answer 3

plays little legal role but holds a symbolic role as the near start of the constitution.

Question 4

Bill of rights 1689

Answer 4

imposed limitations on the power of the crown

Question 5

Act of Settlement 1701

Answer 5

altered the rules of succession.

Question 6

Act of Union 1706-07

Answer 6

unified Scotland into parliament

Question 7

Parliament Acts 1911 and 1949

Answer 7

altered the relationship between the house of commons and the house of lords giving the commons more power

Question 8

European Communities Act 1972

Answer 8

entry to the EU

Question 9

Police and Criminal evidence Act 1984

Answer 9

provides the police with wide powers of arrest but contains safeguards to stop abuse of powers.

Question 10

Public order Act 1986

Answer 10

This Act limits rights to assembly and march

Question 11

Human rights Act 1998

Answer 11

extensive changes to civil liberties and powers of the state

Question 12

Acts of devolution

Answer 12

began to separate the unitary system by giving away power.

Question 13

Constitutional reform act 2005

Answer 13

changed the role of the lord chancellor and created the Supreme court removed the Lord Justice as head of the judiciary.

Question 14

Fixed term parliament act 2011

Answer 14

Every 5 years have an election need a 2/3rds majority to have an election.

Question 15

Diceys definitions of the rule of law

Answer 15

there must be legal certainty, personal liberty, due process of law.

Question 16

Lord Binghams rules:

Answer 16

Law must be accessible and clear

Questions of right and liability must be resolved by law and not discretion

The law should apply equally to all.

There must be adequate protection of human rights

Means must be provided for resolving legal issues.

Ministers and state officials must act in good faith and not abuse their powers.

The law must be fair

The state must abide by international law.

Question 17

House of commons disqualification act 1975

Answer 17

is designed to provide some separation between the state and the legislature.

Question 18

Dicey parliamentary supremacy

Answer 18

parliament is the supreme law making body, no act of parliament may be bound by a predecessor or bind a successor nor can a bill be given special legislatives principals, no person or court can state that an act is unlawful.

Question 19

Manner and form debate

Answer 19

can parliament pass laws which bind the legislative procedure of future parliaments.

Question 20

Administrative law

Answer 20

the law through which individuals can challenge public bodies and applies to the executive arm of government to ensure they act within tehir powers

Question 21

Judicial review

Answer 21

the method by which the public can hold officials to account.

Question 22

Three main reasons judicial review occurs

Answer 22

• Illegality or failing to give effect to the law under which a decision is made.
• Irrationality, which includes arbitrary decisions, but is wider - it includes any decision that is in defiance of logic or accepted moral standards.
• Procedural impropriety - making the decision without due process. This could mean failure to comply with specific requirements such as consulting, those affected by a decision, or failing to comply with common law requirements, such as allowing a fair hearing.

Question 23

an irrational decision as one which is

Answer 23

so in defiance of logic or accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it

Question 24

local government act 1972 s101

Answer 24

local authorities may delegate power to committees or a single officer so long as they make a resolution to do so.

Question 25

The Wednesbury principle

Answer 25

Associated provincial picture houses vs Wednesbury corporation 1948 established the test that whether having regard to relevant considerations only, the decision maker came to a conclusion so unreasonable that no reasonable authority would ever have come to it

Question 26

Post Wednesbury updates

Answer 26

CCSU 1984 to be irrational a decision must be so outrageous in its defiance of logic, or of accepted moral standards that no sensible person could have arrived at it.

Question 27

Ouster provisions

Answer 27

bans judicial review of certain executive actions, if provided for in the bill.

Question 28

rules of natural justice

Answer 28

First there’s the rule against bias. This prohibits a decision maker from acting where his involvement is improper, or from taking decisions which appear to be biased.

Secondly there’s the right to a fair hearing. This always applies to decisions made by governmental bodies, but exactly what is fair for a particular decision isn’t always the same. It will depend on what’s at stake and the reasonable expectations of the parties.

Question 29

permission stage

Answer 29

the court will check that the claimant has standing and that the claim form was issued within the time limit. But, its primary purpose is to weed out futile claims before they reach the substantive hearing stage. In addition, generally the court must not grant permission if the result for the claimant would not have been substantially different if the conduct of the public authority which is complained about had not occurred.

Question 30

the Datafin test

Answer 30

• The first stage is the source of power test. If the body making the decision has been set up under statute or under delegated legislation, or derived its power under a reviewable prerogative power, then it’s a public body.
• 2
If this is not the case, then the court goes on to apply the second stage, namely the nature of power test. Under this part, if the body making the decision is exercising public law functions, it may still be a public body.

Thus giving the court of appeal powers of interpretation

Question 31

House of Lords test against indirect bias

Answer 31

would a fair minded and impartial observer that there had been a real possibility of bias?

Question 32

Procedural Legitimate expectation cases

Answer 32

is where the decision maker has failed to follow normal procedure,

Question 33

Substantive Legitimate expectation cases

Answer 33

is where the decision maker has led someone to believe that he or she will receive a benefit

Question 34

Quashing order

Answer 34

A quashing order (formerly a writ of certiorari) nullifies a decision which has been made by a public body. The effect is to make the decision completely invalid. Such an order is usually made where an authority has acted outside the scope of its powers (ultra vires). The most common order made in successful judicial review proceedings is a quashing order. If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the court’s findings. Very rarely, if there is no purpose in sending the case back, it may take the decision itself.

Question 35

Prohibiting order

Answer 35

A prohibiting order (formerly a writ of prohibition) is similar to a quashing order in that it prevents a tribunal or authority from acting beyond the scope of its powers. The key difference is that a prohibiting order acts prospectively by telling an authority not to do something in contemplation. Examples of where prohibiting orders may be appropriate include stopping the implementation of a decision in breach of natural justice, or to prevent a local authority licensing indecent films, or to prevent the deportation of someone whose immigration status has been wrongly decided.

Question 36

Mandatory order

Answer 36

A mandatory order (formerly a writ of mandamus) compels public authorities to fulfill their duties. Whereas quashing and prohibition orders deal with wrongful acts, a mandatory order addresses wrongful failure to act. A mandatory order is similar to a mandatory injunction (below) as they are orders from the court requiring an act to be performed. Failure to comply is punishable as a contempt of court. Examples of where a mandatory order might be appropriate include: compelling an authority to assess a disabled person’s needs, to approve building plans, or to improve conditions of imprisonment. A mandatory order may be made in conjunction with a quashing order, for example, where a local authority’s decision is quashed because the decision was made outside its powers, the court may simultaneously order the local authority to remake the decision within the scope of its powers.

Question 37

Declaration

Answer 37

A declaration is a judgment by the Administrative Court which clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order. Unlike the remedies of quashing, prohibiting and mandatory order the court is not telling the parties to do anything in a declaratory judgment. For example, if the court declared that a proposed rule by a local authority was unlawful, a declaration would resolve the legal position of the parties in the proceedings. Subsequently, if the authority were to proceed ignoring the declaration, the applicant who obtained the declaration would not have to comply with the unlawful rule and the quashing, prohibiting and mandatory orders would be available.

Question 38

Injunction

Answer 38

An injunction is an order made by the court to stop a public body from acting in an unlawful way. Less commonly, an injunction can be mandatory, that is, it compels a public body to do something. Where there is an imminent risk of damage or loss, and other remedies would not be sufficient, the court may grant an interim injunction to protect the position of the parties before going to a full hearing. If an interim injunction is granted pending final hearing, it is possible that the side which benefits from the injunction will be asked to give an undertaking that if the other side is successful at the final hearing, the party which had the benefit of the interim protection can compensate the other party for its losses. This does not happen where the claimant is legally aided.

Question 39

Damages

Answer 39

Damages are available as a remedy in judicial review in limited circumstances. Compensation is not available merely because a public authority has acted unlawfully. For damages to be available there must be either:

1. a recognised private law cause of action such as negligence or breach of statutory duty; or
2. a claim under European law or the Human Rights Act 1998.

Question 40

Discretion

Answer 40

The discretionary nature of the remedies stated above means that even if a court finds a public body has acted wrongly, it does not have to grant any remedy. Examples of where discretion will be exercised against an applicant may include where the applicant’s own conduct has been unmeritorious or unreasonable, for example where the applicant has unreasonably delayed in applying for judicial review, where the applicant has not acted in good faith, where a remedy would impede an authority’s ability to deliver fair administration, or where the judge considers that an alternative remedy could have been pursued.

Question 41

Applicant claimant

Answer 41

form of procedural impropriety, its when you apply for something like a license and are not given reasons for objection or refusal. one of three forms of claimant

Question 42

Absolute Rights

Answer 42

may not be quite as absolute, legally speaking, as the ordinary use of the word might suggest, they are, nonetheless, rights that the state has to observe strictly. They cannot be interfered with by the state.

Question 43

Qualified rights

Answer 43

on the other hand, are rights that the state has flexibility to interfere with. are written in two parts, expressing the right itself, and the qualifications for it Qualified rights must be specified, be in accordance of the law and created by itThese qualifications need to be for legitimate aims such as national security, public safety or economic wellbeing, prevention of disorder or crime, protection of health or morals, protection of rights or freedoms of others the prevention of disclosure of information revived in confidence, maintaining the impartiality and authority of the judiciary.

Remember these aren’t for every qualified right but are dependant depending on right.

Finally there must be a social need for the qualification and It must be proportionate.

Question 44

limited rights

Answer 44

which can only be limited in clearly defined and finite situations.

Question 45

Interference with individual human rights

Answer 45

comes up regularly in judicial review cases. It’s the basis on which many administrative decisions are challenged, and the courts will apply the three elements, deciding if the interference is:
• Prescribed by law
• In pursuit of a legitimate aim
• Necessary in a democratic society (‘proportionate’)
Remember legitimate aims are listed in the ECHR and are exhaustive

Question 46

Derogation

Answer 46

in a moment of emergency some elements of the ECHR can be suspended but not all, right to life and freedom from torture for example.

Question 47

A remedial order

Answer 47

means government can create secondary legislation to deal with a breach of the ECHR.

Question 48

Restraints on freedom of expression

Answer 48

defamation, breach of confidence, misuse of private information, official secrets threatening insulting or abusive words or behaviour, incitement to racial or religious hatred, obscenity, communications act 2003, terrorism act 2006, contempt of court.

Question 49

Contempt of court

Answer 49

civil (involving disobedience of a court in civil proceedings), criminal (interference in justice). Both are strict liability.

Question 50

forfeiture case

Answer 50

judicial review, when you may lose something, one of three forms of claimant

Question 51

legitimate expectation claimant

Answer 51

when you expect the public body to give you something (Substantive) or when a body has failed to follow a procedure (procedural) judicial review one of three forms of claimant