Public Law & Legal System

Question 1

How do you now become a peer in the House of Lords?

Answer 1

Historically, it could be by hereditary. Now you must be elected by the House

Question 2

What does parliamentary sovereignty mean?

Answer 2

• Parliament has the right to make or unmake any law
• No person or body can override or set aside laws made by Parliament
• NO parliament can bind future parliament
• Parliament does not share the right to make law with any other person or body

Question 3

When may an Act of Parliament be repealed?

Answer 3

All Acts of Parliament may be repealed by a later Act of Parliament even if the wording of the earlier act suggests it cannot

Question 4

Can the UK Parliament retain supremacy over the parliaments of Scotland and Wales?

Answer 4

Yes, although these parliaments are devolved, the Uk can override the wishes of the legislature of Scotland and Wales

Question 5

What are the types of parliamentary Bill?

Answer 5

• Public bill
• Private members bill
• private bill
• hybrid bill
• money bill

Question 6

Can the courts challenge the validity of an Act of Parliament?

Answer 6

No due to the doctrine of parliamentary soveriegnty

Question 7

Can the validity of secondary or delegated legislation be questioned?

Answer 7

Yes, it may be challenged using the process of judicial review and the legislation may be declared invalid

Question 8

What are the requirements for a public processions?

Answer 8

• organisers must give written notice to a police station at least 6 days in advance (not required if its not reasonably practical or it is common, customary or a funeral)
• if the senior police officer reasonably believes that the procession may result in public disorder, serious damage to property or serious disruption to life or the community, then they can include conditions
• if the chief officer does not think these powers will be sufficient, then they can apply to the local council for a prohibition for a max of 3 months (consent from the secretary of state for home affairs is required)

Question 9

Do public assemblies need to notify the police and can they be banned?

Answer 9

No they do not need to notify the police nor can they be banned

Question 10

What is the difference between a public procession and an assembly?

Answer 10

procession is a moving demonstration
assembly is stationary

Question 11

What is breach of the peace?

Answer 11

INvolves violence or threat of violence and includes provoking others to violence

Question 12

When can the police act before violence occurs?

Answer 12

Provided the police honestly and reasonably formed the opinion that there was a real risk of a breach of the peace, in close proximity both in place and time, then the conditions existed for reasonable preventative action

Question 13

What is the literal rule?

Answer 13

Words are given their plain and ordinary meaning

Question 14

What is the golden rule?

Answer 14

Where there are two meanings of a word, they should be given their ordinary meaning as far as possible to the extent they do not produce an absurd result

Question 15

What is the mischief rule?

Answer 15

Requires the interpreter to ascertain the legislators intention

Question 16

What is the purposive approach?

Answer 16

Used more in connection with european legislation, what was the purpose of the statute

Question 17

What does Eiusdem Generis mean in interpreting words?

Answer 17

(Of the same kind or nature): If a general word is followed by two or more specific words, the general word will only apply to items of the same type of specific type

Question 18

What does Noscitur a Sociis mean in interpreting words?

Answer 18

(recognition by associated words): word derives its meaning from surrounding words (specific words)

Question 19

What does expressio Unios est Exclusio Alterus mean?

Answer 19

Means expressing one thing excludes another: mention one or more specific thing may be taken to exclude others of the same type

Question 20

What are intrinsic aids of interpretation?

Answer 20

Use of the Statute itself

Question 21

What are extrinsic aids of interpretation?

Answer 21

• Interpretation acts
• Dictionaries
• Other statutes
• Hansard

Question 22

What is the binding nature of the Privy Council?

Answer 22

Highly persuasive but not binding

Question 23

What is the binding nature of the Supreme Court?

Answer 23

Binds courts below but not itself

Question 24

What is the binding nature of the Court of Appeal?

Answer 24

Binds courts below and normally binds itself except
- where its own previous decisions conflict
- where its previous decision has been implicitly overruled by the Supreme Court
- Where its previous decision was made per incuriam
- where it was an interim decision between two decisions
- where one of the previous decisions is inconsistent with a subsequent decision of the ECtHR

Question 25

What is the binding nature of the High Court in the first instance?

Answer 25

Binds court below but does not bind itself

Question 26

What is the binding nature of the High Court as an appellate court?

Answer 26

Binds courts below and normally binds itself

Question 27

What right of audience do solicitors have?

Answer 27

They can advocate in the lower courts but need a higher right of audience qualification to advocate in the higher courts

Question 28

What is the time limit for applying for judicial review of a decision?

Answer 28

Must be filed as soon as possible and no later than three months (six weeks for planning decisions)

Question 29

When will permission be refused for an application for judicial review?

Answer 29

If there is a suitable alternative remedy
If it is highly likely that the outcome of the applicant would not have been substantially different if it had been made lawfully

Question 30

When does an applicant have standing to bring a judicial review claim?

Answer 30

If the applicant has a sufficient interest in the matter to which the application relates

Question 31

Who may a judicial review be brought against?

Answer 31

Public Body (derives its power from an Act of Parliament or the royal prerogative) or person exercising a public function (regulating something the government would have to regulate if it did not exist)

Question 32

How to courts interpret ouster clauses?

Answer 32

The courts usually not accept full ouster clauses

Question 33

What are the remedies for judicial review?

Answer 33

• Quashing order (instructs the body to make the decision again, legally)
• Prohibiting Order (prohibits the implementation of the illegal decision)
• Mandatory Order (Court orders the body to fulfil its legal duties)
• Injunctions
• damages

Question 34

What can an individual claim for under the illegality ground for judicial review?

Answer 34

• Ultra Vires (acting without legal authority)
• Error of Law (always reviewable)
• Error of fact (most are not reviewable but jurisdictional ones will be)
• Abuse of discretion
• Improper purpose
• Fettering of Discretion
• Delegation of Discretion

Question 35

What does the irrationality ground for judicial review entail?

Answer 35

• requires proof of a very high degree of unreasonableness

Question 36

What does the procedural impropriety ground entail?

Answer 36

Rule against bias
- direct interests (automatic disqualification): can include someone who has an interest which leads to financial gain
- indirect interest (possible disqualification): usually a relative of a decision-maker who has an interest

Right to a fair hearing:
- does not apply in a decision which has been merely preliminary
- can be overridden with national security concerns
- first time hearings, not requirement to give reasons for decision
- forfeiture cases (claimant has a lot to lose): they have a right to be heard and right to reply at each stage
- if a legitimate expectation has been created

Question 37

What does the ground of legitimate expectation entail?

Answer 37

Two types, procedural and substantive
Substantive LE can only arise from undertaking aimed at individuals or small groups
Criteria:
- sufficiently clear promise or conduct
- Body made the le must have had legal power to do so
- Knowledge and reliance

If the matter is too political, the courts will not intervene

Question 38

Which law takes precedence, ECtHR or Primary Legislation?

Answer 38

ECtHR decisions should be taken into account by the UK courts, however, if there is conflict then primary legislation remains the law.

Question 39

What happens if subordinate legislation and European convention rights contravene?

Answer 39

Subordinate (delegated) legislation could be declared invalid if it contravenes convention rights