Public Law Second Term Flashcards
Ex p Daly
Correspondence with lawyer
Article 13 ECHR
Right to an effective remedy
What violation was found in Goodwin v UK?
Art.10
R (Chester) v SoS for Justice
Sumption: ‘truly fundamental principle of law or the most egregious oversight’
Hutchinson v UK
Refused to follow Vinter, finding MacLoughlin correct
Inability to make statute compatible has what effect?
None
Osborne v Parole Board
Oral hearings for early release
Begum
Muslim girl - no process review at HRA
What case shows a clear disregard for intention of P under s.3 HRA?
Ghaidan v Mendoza
Derbyshire CC v The Times on Art.10
CL matches Art.10 so look no further
Why was there concern over Venables v News Groups?
Overdevelopment of breach of confidence into a virtual tort of invasion of privacy
Why is Ridge considered a landmark case for JR?
Extended doctrine of natural justice into administrative decision-making
Bank Mellat v HM Treasury (No.2)
P has not resolved all WU difficulties
Al-Khawaja v UK
Cross-examination, hearsay
Ghaidan v Mendoza
Tenancy, ‘as if they were’
Duncan v Jones
Obstructing constable
Why was Art.13 excluded from HRA?
To avoid arguments over s.3 and s.4 not being sufficient
What is s.4 HRA?
Declaration of incompatibility
R (Greenpeace) v SoS for Trade and Industry
‘no longer a privilege’ at least in the environmental sector (Sullivan J)
Which case used Leech to enforce a fundamental right of access to courts?
Ex p Witham –> Court fees
R (McDonald) v Kensington & Chelsea
Ballerina
What Article was not incorporated from ECHR?
Article 13
Ullah v Special Immigration Adjudicator criticism
Eurocentric and damaging to integrity of HRA
Who criticises Wednesbury for setting the ‘default hurdle… so high that no case can come close’?
Craig
What case said there is no need to look to Art.6 as CL notions of fairness match?
Osborne v Parole board
What argument in particular does s.3 and R v A question
Continuing PS by Wade
What category of expression does Steel & Morris v UK fall under?
(2) Civil or political interest
What case suggested Art.10 mirrors CL?
DCC v Times
Which case showed that GC had failed to understand domestic law in UK?
Hutchinson v UK
Huang v SoS for the HD
Overarching fourth element on proportionality
What are the two traditions of rights?
International human rights and natural/civil rights
What word was read into the statute in WDM?
‘Sound’
Who thinks all substantive review ‘entails some view of the merits’?
Craig
What are the two impacts of s.4 HRA?
Political pressure on G and s.10 Henry VIII Power to ministers to fast-track remedial order for amendment/repeal of legislation
Why was the injunction in Observer and Guardian v UK not found to be necessary?
Info no longer confidential
What previous ECtHR decision provided an issue in ADI?
Vgt Verein v Switzerland
What two factors led to the outcome in Nottinghamshire CC v SoS for the E?
Judicial deference on democratic grounds and an acceptance of institutional competence (Barber: efficiency idea)
Anisminic v Foreign Compensation Commission
QUANGO, nationalised
R (Corner House Research) v Director of the SFO
Saudi Arabia
Who said (2 people) RoL requires legal protection of fundamental rights?
Bingham/Joel
Who believes HRA preserved PS and in what case?
Steyn in Ex p Kebeline
What did Lord Keith say in Derbyshire CC v Times?
No need to resort to Art.10 as CL constitutional right of freedom of expression
Why was there no violation of Art.6 in Al-Khawaja v UK?
Minor part of case and margin of appreciation
What are the four suggestions by the Conservatives on HRA and ECHR?
(1) Repeal HRA and remove binding nature of ECHR and ECtHR, (2) legislate BoR, (3) New BoR only to serious cases and (4) withdraw completely if not accepted by Council of Europe
Helow v SS for the HD
Lady Cosgrove, IAJLJ
R (Doherty) v Birmingham CC
Bingham: room to consider if P ‘has a role in conventional JR’, so close hard to see ‘daylight’
What constitution suggests natural/civil rights are protected because they are fundamental to human dignity?
German constitution: basic law is unrepealable
WM (DRC) v SoS for the HD
Insufficient consideration to fresh evidence
What did Denning say of Art.11?
‘history is full of warnings against suppression of these rights’
Debyshire CC v Times
corruption in DCC
R v A (No.2)
Cross-examination of V’s prior relationship with D
What Article covers freedom of assembly?
Article 11
Who strongly challenged the UV principle as the source is from common law?
Craig and Bamforth, “Constitutional Analysis”
Osborne v Parole Board
Oral hearing; right to fair trial
What is a major problem with s.3 HRA, despite Kebeline?
PS
What are three arguments for keeping Wednesbury?
P would have to decide to allow proportionality because more assertive, WU is relatively simple and been used for 50 years, and judicial restraint needed for separation of powers
Why is it possible there was a high watermark of restraint in Wednesbury?
War-like state of mind and controversial nationally
What are the four subheadings of procedural fairness?
Fair haring, no bis, reason-giving and a duty to consult
Observer and Guardian v UK
Injunction against Spycatcher
SoS for the HD v AF
Followed A v UK on control orders even though some judges thought it wrong (Hoffman)
What case acknowledged a CL right to peaceful public assembly?
DPP v Jones; Beatty v Gillbanks with qualification in Duncan v Jones
What articles were engaged in Ghaidan v Mendoza?
Art.14 and 6
Why is the judgment in Osborne important?
If G repeals HRA or withdraws from ECHR
What is the justification for proportionality in EU and ECHR law?
From ECA and HRA
Boddington v British Transport Police
Not ‘watertight compartments’
What statute recognises freedom of expression?
Contempt of Court Act 1981, s.2, 5 and 10
Who did not agree that P and WU are ‘equally suitable’, against Craig?
T Hickman, “Problems with Proportionality”
Who gave two different senses of unreasonableness in Wednesbury?
Lord Greene
What are the three generations of international rights?
(1) civil and political, (2) social, economic and cultural and (3) group rights
what is the view of human rights which sidesteps the undemocratic view that judges overrule MPs?
Instrumentalist view
Why was the decision in British Oxygen not unreasonable?
Not fettered discretion, just administrative rules
What case did Mustily develop on in Doody?
Baldwin
What is a different justification for natural/civil rights that isn’t from an instrumentalist view?
Fundamental to human dignity
What did they read as supporting CL notions of fairness in Smith and West?
Art.6(1)
Beatty v Gillbanks
Skeleton Army
What do restrictions on Art.10 need to be?
Prescribed by law and necessary to achieve democratic ends
What two judges in Daly considered if Wednesbury will continue at all?
Steyn and Cooke
What did the court decide in S (Children) and Re W (Care Orders)?
S.3 is not a legislative drafting power so s.4 only
Who said protection of natural/civil rights is necessary for democracy?
Dworkin/laws
What case involved ‘super-injunctions’?
Venables v News Groups
What case gave five main criteria for considering mandatory relevant issues?
R (Brown) v Work and Pensions Secretary
What case showed incitement to violence/religious hatred is not covered under Art.10 and merits no protection?
Garaudy v France
Ex p Brind
Broadcasting of IRA
what are jus cogens rules?
binding without a treaty
Name at least two departments which conducted pre-legislative scrutiny of the Communications Act 2003?
JSC on Human Rights (1st Report Session 2002-03); Dept of C, M and S Memo; Counsel’s Advice to SoS on Compatibility with Art.10
Why did courts refuse to use s.3 in ex p Anderson?
Despite ECtHR saying HS could not set sentence, couldn’t interpret legislation to give themselves this powr
In what case did Hoffman inject substantive conception of RoL?
Ex p Simms
What Articles of the French Declaration of Human Rights show historical context of document?
Art 17 (property) and Art.13 (equally apportioned tax)
Ridge v Baldwin
Dismissal in breach of natural justice
What did G do in response to Malone v UK?
Interception of Communications Act 1985
Ex p Simms
Interview; denial violated right of access to justice
Otto Preminger Institut v Austria
Film offending Catholics
Who said courts will regard ECtHR decisions as binding usually?
Bingham in Ullah v Special Immigration Adjudicator
Bellinger v Bellinger
Transgender marriage
Where does the original conception of judicial restraint come from?
Wednesbury
R v MacLoughlin
Refused to follow Vinter
Sunday Times v UK
Thalidomide
In what two courts did the judiciary show deference to the legislature in Animal Defenders?
High Court [2006] and HoL [2008]
What case shows a significant development in substantive review?
GCHQ –> Prerogative
What case shows the height of the Ullah principle?
SoS for the HD v AF
Why, perhaps, does Art.10(2) require restrictions to be publicly promulgated and sufficiently clear?
RoL, autonomy idea (Dworkin; TRA Allen)
In what country did proportionality originate?
Germany
Belfast CC v Miss Behavin’
Sex shop - no process review at HRA
Who warned against requiring perfectly reasoned justifications from decision-makers?
Craig
Who recognised Art.11 might have had positive value as a constitutional right and in what case?
Denning, Hubbard v Pitt
GCHQ case
Trade unions, royal prerogative
Ex p Witham
LC set court fees; no legal aid for defamation
R (Crompton) v Wiltshire Primary Care
‘well-established’, Cranston J
Who said that we have ‘residual liberties’?
Dicey (“The Law of the Constitution”)
What is s.1 of HRA?
Rights are not part of domestic law
What case shows the high water mark of s.3 HRA?
R v A (No.2)
Under what principles of review did McDonald fail?
Both proportionality and WU
Name three breaches found with ECHR before HRA
Malone v UK; E p Brind; Ex p Smith
Why does the dicta in DCC v The Times not match up to subsequent cases?
First violations of HRA/ECHR were through common law
What are some of the justifable restrictions given i Art.10(2)?
National security, public safety and maintaining authority
Why was the decision of the minister in Padfield considered unreasonable?
Inappropriate input of political reasons.
What section of the Equality Act in particular shows relevant considerations?
S.149
Kennedy v Charity Comission
Inquiry, exempted disclosure under FOIA
Ex p Brind
Sinn Fein; radio
Name at least three categories of expression
(1) political, (2) civil or political interest, (3) artistic, (4) commercial, (5) press and journalistic freedom
What happens if a devolved institution legislates in violation of ECHR?
Taken outside of devolved competence and struck down
What article was engaged in ex p Smith?
Art.8
What did Bingham say of the Ullah principle?
‘No more but certainly no less’ than the ECtHR
What are the two Goodwin cases?
Goodwin –> Transgender and Goodwin –> Company information
what is the most radical approach to s.3?
R v A (No.2)
De Freitas v Permanent Secretary
Three questions of proportionality
Who argued that P and WU should coexist else the ‘public terrain’ would again be flattened, which is a ‘step backwards’?
T Hickman
What section of HRA makes it clear P intended to preserve PS?
S.19 (statement of incompatibility)
what case first recognised a right of access to courts in common law?
Ex p Leech (No.2)
What case showed the CoA refusing to follow Vinter v UK and why?
R v MacLoughlin; examined domestic law and thought it enough with safeguards
Ex p Bugdaycay
Africa refugee
DPP v Jones
Stone henge druids
What case referred to Horncastle to show margin of appreciation and proportional?
Al-Khawaja v UK
Who termed the way irrationality creeps into HRA as ‘leakage’?
Le Sueur “The Rise and Ruin of Unreasonableness”
Before the HRA, what was the effect of the ECHR?
No direct effect, references made and abide by rulings (Art. 46)
What were the three reasons for refusing s.4 in HoL ADI case?
MPs are sensitive to measures necessary for democracy, P knew possibly of violation but important and legislation draws general rules, so P decides where to draw the line
R v Horncastle
Hearsay evidence and safeguards
British Oxygen Co v Ministry of Technology
Investment grant
What judge thought A v UK was wrongly decided on control orders?
Hoffman
What does procedural fairness link with?
Art.6(1) ECHR
Ex p Armah
Reid, ‘jurisdiction to go right… jurisdiction to go wrong’
What did the court decide in R v A (No.2)?
P could not have intended to deny D defence of consent
What are the two issues with s.3 HRA?
RoL (not clear or transparent law) and beyond ordinary rules of statutory interpretation
What article was engaged in Brind?
Art.10
Why was a s.4 declaration given in Bellinger v Bellinger?
Known to be against ECtHR (Goodwin v UK), but statute was clear and P researching how to give effect
What were the three questions of proportionality given in De Freitas?
Objective important enough, measures meet that objective and means are not more than necessary
What are two issues with common law and statute protecting civil liberties?
No specific legal protection means it can be breached, and parliamentary sovereignty (can enact any legislation)
Padfield v Minister of Agriculture
Centralised system
Ex p Doody
SoS refusing release after minimum term without revealing why
What case gave a presumption for oral hearings?
R (Smith and West) v Parole Board
Ex p Simms
Journalists
what case shows the difference between proportionality and wednesbury unreasonableness?
Ex p Smith
What legislation was challenged in Animal Defenders International v UK?
Communications Act 2003, s.321
Ex p Leech (No.2)
Solicitor correspondence
Handyside v UK
Obscene publication ban
Steel & Morris v UK
MacLibel case
What is s.2 HRA?
‘Take into account’ judgment of ECtHR
What were the two difference idea of unreasonableness in Wednesbury?
Umbrella sense (grounds of review) and substantive sense (individual ground)
R (Litvinenko) v SoS for the HD
Reasons insufficient
R (Bancoult) v SoS for F and CWA
Archipelago
What was the split in ADI in ECtHR?
9:8
Is there a type of process review for HRA?
NO
Goodwin v UK [1996]
stolen damaging information
What Article covers freedom of expression?
Article 10
What did the majority in ADI in ECtHR say?
Vgt decision was weak; legitimate objective; great deference to P and extensive pre-legislative consultation
R (Hasan) v Trade and Industry Secretary
If under FOIA, do not push for reasons
What is not covered under Art.10?
Incitement to violence/religious hatred/freedom of information
Ex p Simms on CL protection despite Sunday Times v UK etc
Protection very high - HS ‘not authorised’ to ban interviews
What is s.2 HRA unlike?
Binding nature of judgment in s.3 ECA
What were they trying to make the statute comply with in R v A (No.2)?
Art.6 subparagraph 3
How did Labour incorporate ECHR?
Word for word in HRA
In what case was it considered that there is an irreducible minimum for procedural fairness?
A and others v UK
What made Nottinghamshire CC justiciable in theory?
GCHQ; prerogative
R (Smith and West) v Parole Board
Predisposition in favour of oral hearing
What case shows proportionality vs anxious scrutiny?
Smith & Grady v UK
World Development Movement
Purgao Dam
Venables v News Groups
Murder at 11, injunction
BromleyLBC v GLC
Subsidise tube and bus
What two cases explicitly show judges recognising that courts will almost always follow ECtHR?
R (Chester) v SoS for J; Ullah v Special Immigration Adjudicator
What type of review was conducted in Bugdaycay?
Anxious scrutiny
Ex p Anderson
HS power to set life sentences
What category of expression does Handyside v UK fall under?
(3) Artistic
Why did the minority in ADI decide it was disproportionate?
Other measures available
What category of expression does Sunday Times v UK fall under?
Press and journalists freedom
What Article of the ECHR requires courts to abide by rulings involving the UK?
Article 46
What did fears of freedom of press curtailment due to clashes lead to?
S.12 HRA
Under what generation of international rights would you find jus cogens rules?
Group rights
Who said that JR is a ‘supervisory, inherent jurisdiction directed on grounds of legality to the decisions and other public functions of public bodies’
Sir William Wade, “Administrative Law”
Hirst v UK
Prisoner’s votes; G refuses to give effect to incompatibility
What is s.3 HRA?
‘Insofar as it is possible to do so’ interpret legislation to make it compatible
What case shows a devolved institution violating ECHR?
Recovery of Medial Costs for Asbestos Disease (Wales) Bill
Ex p Kebeline on HRA
Steyn: ‘carefully and subtly drafted 1998 Act preserved the principle of PS’
What case said that CL is first , then HRA?
Osborn v Parole Board
What was an issue with the introduction of the ECHR?
Treaty is not binding unless incorporated due to dualist legal system
Ex p Pierson
Extending tariff
What Article did Recovery of Medial Costs for Asbestos Disease (Wales) Bill violate?
Art.1 Protocol 1
Ex p Institute of Dental Surgery
Inexpressible judgments (Sedley J)
Porter v Magill
Hope: ‘fair-minded and informed observer… would conclude there is a real possibility of bias’
what two cases show the courts stating that s.3 is not a legislative provision?
Ex p Anderson and S (Children) & Re W (Care Orders)
Communications Act 2003, s.321
Blanket ban on political adverts and wide definition of ‘political advertising’ under subsection 2 excluded NGOs
what was the split in Bancoult between the judges?
3:2
Who argues strongly against a BoR for he believes it will make UK less democratic?
J Waldron, “A Rights-Based Critique of Constitutional Rights”
Ex p Smith
Homosexuals
Ex p Begbie
Sliding scale of ‘Wednesbury unreasonableness’ according to Laws LJ
What was said about defamation in Derbyshire CC v Times?
Public authority cannot sue for defamation
According to Anthony Matthews, what is the irreducible minimum for a fair hearing?
Free from bias and affected party has a right to be heard
Nottinghamshire CC v SoS for the Environment
Grant favours Conservatives
Vinter and others v UK
No real possibility of reviewing life sentence
What did Hale say in Belfast CC v Miss Behavin’?
No incentive to consider convention rights if not subject to process review, so said if they do then they may be more deferential
What did the judges refuse to do in Brind?
Consider proportionality before HRA
Ex p Smith
Homosexuals
R (Plantagenet Society) v SoS for Justice
Richard III
What was the overarching fourth element from Huang v SoS?
Fair balance between individual and community interests
Malone v MPC
Tab on post office; no tort of invasion of privacy, so not unlawful and no need for statutory power
What case is the leading one on AS for asylum immigration
WM (DRC) v SoS for the HD
Although GCHQ allows review of prerogative, what does Bancoult show?
Careful in international relations/national security
S.12 HRA
Ensures freedom of press is not disregarded for other rights; s.12(4) requires regard to Art.10 before injunction
Who argued that WU is still often used post-HRA?
Craig
Malone v UK
Unregulated phone tapping contrary to Art.8
What did the High Court say in ADI?
Exec and legislative had a better grasp of states need ‘in such matters of social and political jugdment’ than Strasbourg
Who criticised the WDM case?
J Sumption in “Judicial and Political Decision-Making: The Uncertain Boundary”
what did Steyn say in Ex p Leech?
RoL demands right of access to courts, requiring an ability to communicate with a lawyer
Why did the Ullah principle come about?
To avoid frustrating the main objective of HRA
Who argued for WU in McDonald?
Hale
What is s.4 HRA unlike?
S.2(4) ECA
In what case did the HoL refuse to apply art.10 and legislate ‘via the back door’?
Brind
What was said of s.4 in R v A?
‘Measure of last resort’
S (Children) and Re W (Care Orders)
Little information to parents
What Act gives mandatory relevant considerations?
Equality Act 2010
