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Public Law Second Term Flashcards

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1
Q

Ex p Daly

A

Correspondence with lawyer

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1
Q

Article 13 ECHR

A

Right to an effective remedy

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1
Q

What violation was found in Goodwin v UK?

A

Art.10

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2
Q

R (Chester) v SoS for Justice

A

Sumption: ‘truly fundamental principle of law or the most egregious oversight’

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2
Q

Hutchinson v UK

A

Refused to follow Vinter, finding MacLoughlin correct

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2
Q

Inability to make statute compatible has what effect?

A

None

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3
Q

Osborne v Parole Board

A

Oral hearings for early release

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4
Q

Begum

A

Muslim girl - no process review at HRA

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6
Q

What case shows a clear disregard for intention of P under s.3 HRA?

A

Ghaidan v Mendoza

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6
Q

Derbyshire CC v The Times on Art.10

A

CL matches Art.10 so look no further

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7
Q

Why was there concern over Venables v News Groups?

A

Overdevelopment of breach of confidence into a virtual tort of invasion of privacy

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8
Q

Why is Ridge considered a landmark case for JR?

A

Extended doctrine of natural justice into administrative decision-making

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8
Q

Bank Mellat v HM Treasury (No.2)

A

P has not resolved all WU difficulties

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8
Q

Al-Khawaja v UK

A

Cross-examination, hearsay

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8
Q

Ghaidan v Mendoza

A

Tenancy, ‘as if they were’

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8
Q

Duncan v Jones

A

Obstructing constable

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9
Q

Why was Art.13 excluded from HRA?

A

To avoid arguments over s.3 and s.4 not being sufficient

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10
Q

What is s.4 HRA?

A

Declaration of incompatibility

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11
Q

R (Greenpeace) v SoS for Trade and Industry

A

‘no longer a privilege’ at least in the environmental sector (Sullivan J)

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12
Q

Which case used Leech to enforce a fundamental right of access to courts?

A

Ex p Witham –> Court fees

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13
Q

R (McDonald) v Kensington & Chelsea

A

Ballerina

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13
Q

What Article was not incorporated from ECHR?

A

Article 13

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13
Q

Ullah v Special Immigration Adjudicator criticism

A

Eurocentric and damaging to integrity of HRA

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14
Q

Who criticises Wednesbury for setting the ‘default hurdle… so high that no case can come close’?

A

Craig

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14
Q

What case said there is no need to look to Art.6 as CL notions of fairness match?

A

Osborne v Parole board

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15
Q

What argument in particular does s.3 and R v A question

A

Continuing PS by Wade

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15
Q

What category of expression does Steel & Morris v UK fall under?

A

(2) Civil or political interest

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16
Q

What case suggested Art.10 mirrors CL?

A

DCC v Times

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17
Q

Which case showed that GC had failed to understand domestic law in UK?

A

Hutchinson v UK

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19
Q

Huang v SoS for the HD

A

Overarching fourth element on proportionality

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19
Q

What are the two traditions of rights?

A

International human rights and natural/civil rights

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20
Q

What word was read into the statute in WDM?

A

‘Sound’

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20
Q

Who thinks all substantive review ‘entails some view of the merits’?

A

Craig

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21
Q

What are the two impacts of s.4 HRA?

A

Political pressure on G and s.10 Henry VIII Power to ministers to fast-track remedial order for amendment/repeal of legislation

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21
Q

Why was the injunction in Observer and Guardian v UK not found to be necessary?

A

Info no longer confidential

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21
Q

What previous ECtHR decision provided an issue in ADI?

A

Vgt Verein v Switzerland

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22
Q

What two factors led to the outcome in Nottinghamshire CC v SoS for the E?

A

Judicial deference on democratic grounds and an acceptance of institutional competence (Barber: efficiency idea)

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23
Q

Anisminic v Foreign Compensation Commission

A

QUANGO, nationalised

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23
Q

R (Corner House Research) v Director of the SFO

A

Saudi Arabia

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23
Q

Who said (2 people) RoL requires legal protection of fundamental rights?

A

Bingham/Joel

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24
Q

Who believes HRA preserved PS and in what case?

A

Steyn in Ex p Kebeline

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25
Q

What did Lord Keith say in Derbyshire CC v Times?

A

No need to resort to Art.10 as CL constitutional right of freedom of expression

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26
Q

Why was there no violation of Art.6 in Al-Khawaja v UK?

A

Minor part of case and margin of appreciation

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27
Q

What are the four suggestions by the Conservatives on HRA and ECHR?

A

(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

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28
Q

Helow v SS for the HD

A

Lady Cosgrove, IAJLJ

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29
Q

R (Doherty) v Birmingham CC

A

Bingham: room to consider if P ‘has a role in conventional JR’, so close hard to see ‘daylight’

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30
Q

What constitution suggests natural/civil rights are protected because they are fundamental to human dignity?

A

German constitution: basic law is unrepealable

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31
Q

WM (DRC) v SoS for the HD

A

Insufficient consideration to fresh evidence

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31
Q

What did Denning say of Art.11?

A

‘history is full of warnings against suppression of these rights’

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32
Q

Debyshire CC v Times

A

corruption in DCC

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32
Q

R v A (No.2)

A

Cross-examination of V’s prior relationship with D

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33
Q

What Article covers freedom of assembly?

A

Article 11

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34
Q

Who strongly challenged the UV principle as the source is from common law?

A

Craig and Bamforth, “Constitutional Analysis”

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34
Q

Osborne v Parole Board

A

Oral hearing; right to fair trial

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34
Q

What is a major problem with s.3 HRA, despite Kebeline?

A

PS

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34
Q

What are three arguments for keeping Wednesbury?

A

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

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35
Q

Why is it possible there was a high watermark of restraint in Wednesbury?

A

War-like state of mind and controversial nationally

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36
Q

What are the four subheadings of procedural fairness?

A

Fair haring, no bis, reason-giving and a duty to consult

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37
Q

Observer and Guardian v UK

A

Injunction against Spycatcher

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39
Q

SoS for the HD v AF

A

Followed A v UK on control orders even though some judges thought it wrong (Hoffman)

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40
Q

What case acknowledged a CL right to peaceful public assembly?

A

DPP v Jones; Beatty v Gillbanks with qualification in Duncan v Jones

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41
Q

What articles were engaged in Ghaidan v Mendoza?

A

Art.14 and 6

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43
Q

Why is the judgment in Osborne important?

A

If G repeals HRA or withdraws from ECHR

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45
Q

What is the justification for proportionality in EU and ECHR law?

A

From ECA and HRA

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46
Q

Boddington v British Transport Police

A

Not ‘watertight compartments’

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46
Q

What statute recognises freedom of expression?

A

Contempt of Court Act 1981, s.2, 5 and 10

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47
Q

Who did not agree that P and WU are ‘equally suitable’, against Craig?

A

T Hickman, “Problems with Proportionality”

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48
Q

Who gave two different senses of unreasonableness in Wednesbury?

A

Lord Greene

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48
Q

What are the three generations of international rights?

A

(1) civil and political, (2) social, economic and cultural and (3) group rights

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48
Q

what is the view of human rights which sidesteps the undemocratic view that judges overrule MPs?

A

Instrumentalist view

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49
Q

Why was the decision in British Oxygen not unreasonable?

A

Not fettered discretion, just administrative rules

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50
Q

What case did Mustily develop on in Doody?

A

Baldwin

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51
Q

What is a different justification for natural/civil rights that isn’t from an instrumentalist view?

A

Fundamental to human dignity

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52
Q

What did they read as supporting CL notions of fairness in Smith and West?

A

Art.6(1)

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54
Q

Beatty v Gillbanks

A

Skeleton Army

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57
Q

What do restrictions on Art.10 need to be?

A

Prescribed by law and necessary to achieve democratic ends

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58
Q

What two judges in Daly considered if Wednesbury will continue at all?

A

Steyn and Cooke

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60
Q

What did the court decide in S (Children) and Re W (Care Orders)?

A

S.3 is not a legislative drafting power so s.4 only

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61
Q

Who said protection of natural/civil rights is necessary for democracy?

A

Dworkin/laws

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61
Q

What case involved ‘super-injunctions’?

A

Venables v News Groups

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63
Q

What case gave five main criteria for considering mandatory relevant issues?

A

R (Brown) v Work and Pensions Secretary

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64
Q

What case showed incitement to violence/religious hatred is not covered under Art.10 and merits no protection?

A

Garaudy v France

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65
Q

Ex p Brind

A

Broadcasting of IRA

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66
Q

what are jus cogens rules?

A

binding without a treaty

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66
Q

Name at least two departments which conducted pre-legislative scrutiny of the Communications Act 2003?

A

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

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67
Q

Why did courts refuse to use s.3 in ex p Anderson?

A

Despite ECtHR saying HS could not set sentence, couldn’t interpret legislation to give themselves this powr

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68
Q

In what case did Hoffman inject substantive conception of RoL?

A

Ex p Simms

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68
Q

What Articles of the French Declaration of Human Rights show historical context of document?

A

Art 17 (property) and Art.13 (equally apportioned tax)

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69
Q

Ridge v Baldwin

A

Dismissal in breach of natural justice

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71
Q

What did G do in response to Malone v UK?

A

Interception of Communications Act 1985

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72
Q

Ex p Simms

A

Interview; denial violated right of access to justice

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72
Q

Otto Preminger Institut v Austria

A

Film offending Catholics

74
Q

Who said courts will regard ECtHR decisions as binding usually?

A

Bingham in Ullah v Special Immigration Adjudicator

75
Q

Bellinger v Bellinger

A

Transgender marriage

77
Q

Where does the original conception of judicial restraint come from?

A

Wednesbury

78
Q

R v MacLoughlin

A

Refused to follow Vinter

79
Q

Sunday Times v UK

A

Thalidomide

80
Q

In what two courts did the judiciary show deference to the legislature in Animal Defenders?

A

High Court [2006] and HoL [2008]

81
Q

What case shows a significant development in substantive review?

A

GCHQ –> Prerogative

82
Q

What case shows the height of the Ullah principle?

A

SoS for the HD v AF

82
Q

Why, perhaps, does Art.10(2) require restrictions to be publicly promulgated and sufficiently clear?

A

RoL, autonomy idea (Dworkin; TRA Allen)

83
Q

In what country did proportionality originate?

A

Germany

83
Q

Belfast CC v Miss Behavin’

A

Sex shop - no process review at HRA

85
Q

Who warned against requiring perfectly reasoned justifications from decision-makers?

A

Craig

86
Q

Who recognised Art.11 might have had positive value as a constitutional right and in what case?

A

Denning, Hubbard v Pitt

88
Q

GCHQ case

A

Trade unions, royal prerogative

89
Q

Ex p Witham

A

LC set court fees; no legal aid for defamation

90
Q

R (Crompton) v Wiltshire Primary Care

A

‘well-established’, Cranston J

91
Q

Who said that we have ‘residual liberties’?

A

Dicey (“The Law of the Constitution”)

93
Q

What is s.1 of HRA?

A

Rights are not part of domestic law

94
Q

What case shows the high water mark of s.3 HRA?

A

R v A (No.2)

96
Q

Under what principles of review did McDonald fail?

A

Both proportionality and WU

97
Q

Name three breaches found with ECHR before HRA

A

Malone v UK; E p Brind; Ex p Smith

98
Q

Why does the dicta in DCC v The Times not match up to subsequent cases?

A

First violations of HRA/ECHR were through common law

99
Q

What are some of the justifable restrictions given i Art.10(2)?

A

National security, public safety and maintaining authority

100
Q

Why was the decision of the minister in Padfield considered unreasonable?

A

Inappropriate input of political reasons.

102
Q

What section of the Equality Act in particular shows relevant considerations?

A

S.149

103
Q

Kennedy v Charity Comission

A

Inquiry, exempted disclosure under FOIA

104
Q

Ex p Brind

A

Sinn Fein; radio

105
Q

Name at least three categories of expression

A

(1) political, (2) civil or political interest, (3) artistic, (4) commercial, (5) press and journalistic freedom

106
Q

What happens if a devolved institution legislates in violation of ECHR?

A

Taken outside of devolved competence and struck down

108
Q

What article was engaged in ex p Smith?

A

Art.8

109
Q

What did Bingham say of the Ullah principle?

A

‘No more but certainly no less’ than the ECtHR

110
Q

What are the two Goodwin cases?

A

Goodwin –> Transgender and Goodwin –> Company information

110
Q

what is the most radical approach to s.3?

A

R v A (No.2)

112
Q

De Freitas v Permanent Secretary

A

Three questions of proportionality

113
Q

Who argued that P and WU should coexist else the ‘public terrain’ would again be flattened, which is a ‘step backwards’?

A

T Hickman

114
Q

What section of HRA makes it clear P intended to preserve PS?

A

S.19 (statement of incompatibility)

115
Q

what case first recognised a right of access to courts in common law?

A

Ex p Leech (No.2)

116
Q

What case showed the CoA refusing to follow Vinter v UK and why?

A

R v MacLoughlin; examined domestic law and thought it enough with safeguards

117
Q

Ex p Bugdaycay

A

Africa refugee

118
Q

DPP v Jones

A

Stone henge druids

119
Q

What case referred to Horncastle to show margin of appreciation and proportional?

A

Al-Khawaja v UK

121
Q

Who termed the way irrationality creeps into HRA as ‘leakage’?

A

Le Sueur “The Rise and Ruin of Unreasonableness”

122
Q

Before the HRA, what was the effect of the ECHR?

A

No direct effect, references made and abide by rulings (Art. 46)

123
Q

What were the three reasons for refusing s.4 in HoL ADI case?

A

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

124
Q

R v Horncastle

A

Hearsay evidence and safeguards

125
Q

British Oxygen Co v Ministry of Technology

A

Investment grant

127
Q

What judge thought A v UK was wrongly decided on control orders?

A

Hoffman

128
Q

What does procedural fairness link with?

A

Art.6(1) ECHR

130
Q

Ex p Armah

A

Reid, ‘jurisdiction to go right… jurisdiction to go wrong’

131
Q

What did the court decide in R v A (No.2)?

A

P could not have intended to deny D defence of consent

132
Q

What are the two issues with s.3 HRA?

A

RoL (not clear or transparent law) and beyond ordinary rules of statutory interpretation

135
Q

What article was engaged in Brind?

A

Art.10

136
Q

Why was a s.4 declaration given in Bellinger v Bellinger?

A

Known to be against ECtHR (Goodwin v UK), but statute was clear and P researching how to give effect

137
Q

What were the three questions of proportionality given in De Freitas?

A

Objective important enough, measures meet that objective and means are not more than necessary

138
Q

What are two issues with common law and statute protecting civil liberties?

A

No specific legal protection means it can be breached, and parliamentary sovereignty (can enact any legislation)

139
Q

Padfield v Minister of Agriculture

A

Centralised system

140
Q

Ex p Doody

A

SoS refusing release after minimum term without revealing why

141
Q

What case gave a presumption for oral hearings?

A

R (Smith and West) v Parole Board

142
Q

Ex p Simms

A

Journalists

144
Q

what case shows the difference between proportionality and wednesbury unreasonableness?

A

Ex p Smith

145
Q

What legislation was challenged in Animal Defenders International v UK?

A

Communications Act 2003, s.321

146
Q

Ex p Leech (No.2)

A

Solicitor correspondence

147
Q

Handyside v UK

A

Obscene publication ban

149
Q

Steel & Morris v UK

A

MacLibel case

151
Q

What is s.2 HRA?

A

‘Take into account’ judgment of ECtHR

152
Q

What were the two difference idea of unreasonableness in Wednesbury?

A

Umbrella sense (grounds of review) and substantive sense (individual ground)

153
Q

R (Litvinenko) v SoS for the HD

A

Reasons insufficient

154
Q

R (Bancoult) v SoS for F and CWA

A

Archipelago

155
Q

What was the split in ADI in ECtHR?

A

9:8

156
Q

Is there a type of process review for HRA?

A

NO

158
Q

Goodwin v UK [1996]

A

stolen damaging information

160
Q

What Article covers freedom of expression?

A

Article 10

160
Q

What did the majority in ADI in ECtHR say?

A

Vgt decision was weak; legitimate objective; great deference to P and extensive pre-legislative consultation

162
Q

R (Hasan) v Trade and Industry Secretary

A

If under FOIA, do not push for reasons

162
Q

What is not covered under Art.10?

A

Incitement to violence/religious hatred/freedom of information

163
Q

Ex p Simms on CL protection despite Sunday Times v UK etc

A

Protection very high - HS ‘not authorised’ to ban interviews

164
Q

What is s.2 HRA unlike?

A

Binding nature of judgment in s.3 ECA

165
Q

What were they trying to make the statute comply with in R v A (No.2)?

A

Art.6 subparagraph 3

166
Q

How did Labour incorporate ECHR?

A

Word for word in HRA

167
Q

In what case was it considered that there is an irreducible minimum for procedural fairness?

A

A and others v UK

168
Q

What made Nottinghamshire CC justiciable in theory?

A

GCHQ; prerogative

169
Q

R (Smith and West) v Parole Board

A

Predisposition in favour of oral hearing

170
Q

What case shows proportionality vs anxious scrutiny?

A

Smith & Grady v UK

171
Q

World Development Movement

A

Purgao Dam

171
Q

Venables v News Groups

A

Murder at 11, injunction

172
Q

BromleyLBC v GLC

A

Subsidise tube and bus

173
Q

What two cases explicitly show judges recognising that courts will almost always follow ECtHR?

A

R (Chester) v SoS for J; Ullah v Special Immigration Adjudicator

174
Q

What type of review was conducted in Bugdaycay?

A

Anxious scrutiny

176
Q

Ex p Anderson

A

HS power to set life sentences

178
Q

What category of expression does Handyside v UK fall under?

A

(3) Artistic

179
Q

Why did the minority in ADI decide it was disproportionate?

A

Other measures available

180
Q

What category of expression does Sunday Times v UK fall under?

A

Press and journalists freedom

181
Q

What Article of the ECHR requires courts to abide by rulings involving the UK?

A

Article 46

182
Q

What did fears of freedom of press curtailment due to clashes lead to?

A

S.12 HRA

183
Q

Under what generation of international rights would you find jus cogens rules?

A

Group rights

185
Q

Who said that JR is a ‘supervisory, inherent jurisdiction directed on grounds of legality to the decisions and other public functions of public bodies’

A

Sir William Wade, “Administrative Law”

187
Q

Hirst v UK

A

Prisoner’s votes; G refuses to give effect to incompatibility

188
Q

What is s.3 HRA?

A

‘Insofar as it is possible to do so’ interpret legislation to make it compatible

189
Q

What case shows a devolved institution violating ECHR?

A

Recovery of Medial Costs for Asbestos Disease (Wales) Bill

190
Q

Ex p Kebeline on HRA

A

Steyn: ‘carefully and subtly drafted 1998 Act preserved the principle of PS’

191
Q

What case said that CL is first , then HRA?

A

Osborn v Parole Board

192
Q

What was an issue with the introduction of the ECHR?

A

Treaty is not binding unless incorporated due to dualist legal system

193
Q

Ex p Pierson

A

Extending tariff

194
Q

What Article did Recovery of Medial Costs for Asbestos Disease (Wales) Bill violate?

A

Art.1 Protocol 1

195
Q

Ex p Institute of Dental Surgery

A

Inexpressible judgments (Sedley J)

196
Q

Porter v Magill

A

Hope: ‘fair-minded and informed observer… would conclude there is a real possibility of bias’

196
Q

what two cases show the courts stating that s.3 is not a legislative provision?

A

Ex p Anderson and S (Children) & Re W (Care Orders)

197
Q

Communications Act 2003, s.321

A

Blanket ban on political adverts and wide definition of ‘political advertising’ under subsection 2 excluded NGOs

198
Q

what was the split in Bancoult between the judges?

A

3:2

199
Q

Who argues strongly against a BoR for he believes it will make UK less democratic?

A

J Waldron, “A Rights-Based Critique of Constitutional Rights”

200
Q

Ex p Smith

A

Homosexuals

201
Q

Ex p Begbie

A

Sliding scale of ‘Wednesbury unreasonableness’ according to Laws LJ

202
Q

What was said about defamation in Derbyshire CC v Times?

A

Public authority cannot sue for defamation

203
Q

According to Anthony Matthews, what is the irreducible minimum for a fair hearing?

A

Free from bias and affected party has a right to be heard

205
Q

Nottinghamshire CC v SoS for the Environment

A

Grant favours Conservatives

206
Q

Vinter and others v UK

A

No real possibility of reviewing life sentence

207
Q

What did Hale say in Belfast CC v Miss Behavin’?

A

No incentive to consider convention rights if not subject to process review, so said if they do then they may be more deferential

208
Q

What did the judges refuse to do in Brind?

A

Consider proportionality before HRA

209
Q

Ex p Smith

A

Homosexuals

210
Q

R (Plantagenet Society) v SoS for Justice

A

Richard III

212
Q

What was the overarching fourth element from Huang v SoS?

A

Fair balance between individual and community interests

213
Q

Malone v MPC

A

Tab on post office; no tort of invasion of privacy, so not unlawful and no need for statutory power

214
Q

What case is the leading one on AS for asylum immigration

A

WM (DRC) v SoS for the HD

215
Q

Although GCHQ allows review of prerogative, what does Bancoult show?

A

Careful in international relations/national security

216
Q

S.12 HRA

A

Ensures freedom of press is not disregarded for other rights; s.12(4) requires regard to Art.10 before injunction

217
Q

Who argued that WU is still often used post-HRA?

A

Craig

219
Q

Malone v UK

A

Unregulated phone tapping contrary to Art.8

220
Q

What did the High Court say in ADI?

A

Exec and legislative had a better grasp of states need ‘in such matters of social and political jugdment’ than Strasbourg

221
Q

Who criticised the WDM case?

A

J Sumption in “Judicial and Political Decision-Making: The Uncertain Boundary”

222
Q

what did Steyn say in Ex p Leech?

A

RoL demands right of access to courts, requiring an ability to communicate with a lawyer

223
Q

Why did the Ullah principle come about?

A

To avoid frustrating the main objective of HRA

224
Q

Who argued for WU in McDonald?

A

Hale

225
Q

What is s.4 HRA unlike?

A

S.2(4) ECA

226
Q

In what case did the HoL refuse to apply art.10 and legislate ‘via the back door’?

A

Brind

227
Q

What was said of s.4 in R v A?

A

‘Measure of last resort’

228
Q

S (Children) and Re W (Care Orders)

A

Little information to parents

229
Q

What Act gives mandatory relevant considerations?

A

Equality Act 2010

Law First Year (24 decks)

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