Public Law (Underlying)

Question 1

What is the doctrine of stare decisis

Answer 1

Binding Precedent

• Once a principle has been laid down, cases with the same material fact must be decided in the same way.
• The ratio decidendi is binding.
• Obiter dictum is not binding but highly persuasive and influential on subsequent cases

Question 2

When is a judgment reversed?

Answer 2

If the case goes to appeal and the higher appeal court dosagrees with the lower court

Question 3

When is a precedent overruled?

Answer 3

If a superior court later decide the original precedent is wrong and sets a correct new precedent.

Question 4

What is the precedential approach of the Court of Appeal?

Answer 4

The CA rulings often bind itself.

However, it can depart from aprecedent it has established if one of three exceptions apply:

1. The CA came to a previously conflicting decision - the CA can select one
2. If the CA own previous decision has been overruled by the UKSC or HL
3. If the CA previous decision was made per incuriam - where the decision was made not aware of relevant authority and that led to faulty reasoning.

Question 5

Is the First tier tribunal binding?

Answer 5

No.

However it may be persuasive

Question 6

Are the family courts, county courts, crown court or Magistrates Courts binding?

Answer 6

No

Neither binding nor persuasive

Question 7

Is a decision of the High Court binding?

Answer 7

• Bidning on inferiror courts
• Does not bind itself - however will only depart from its own decision where it was wrong
• Does not bind superior courts

Question 8

Is a decision of the UKSC binding?

Answer 8

Binds all inferior courts

Does not bind itself

Question 9

Is the UK a dualist state?

What does this mean?

Answer 9

Yes - it is a dualist state

International treaties do not have direct effect in domestic law unless incorporated by legislation.

For example, EEC (Treaty of Rome) had to be incorporated into domestic law by the ECA 1972.

Question 10

What treaty established the European Union?

Answer 10

Maastricht Treatu 1992

Question 11

What was the effect of the 2016 Brexit Referendum

Answer 11

On 31 January 2020 the UK left the EU.

The effect of the EU law is goverened by the European Union (Withdrawal) Act 2018 which repealed ECA 1972

Question 12

What is a retained law strategyand how has it been applied for Brexit?

Answer 12

The European Union (Withdrawal) Act 2018 retained EU law (making it domestic law)

This law can now be replaced by new UK legislation, but it remains in force until repealed and replaced.

Question 13

What was the effect of the EUWA Transition Period?

Answer 13

The transition period/implementation lasted until 31 December 2020.

During this period EU law continued to have effect in the UK including the ability of UK Courts to disapply any domestic law

Question 14

Following the end of the EU transition period, what are the two legal regimes?

Answer 14

1. s.7A EUWA - Gives effect to ‘Preserved EU Law ‘ - some EU law continues to apply post-transition period.
2. Any law not ‘preserved’ is retained and known as ‘assimilated law’ under EUWA

Question 15

What is preserved EU law?

Answer 15

These EU laws continue to apply for the limited matters stated in the Withdrawal Agreement.

These include….

• Union Citizens and Family Members resident in the UK at the end of the transition period
• Protocol on Ireland - Windsor Framework - maintaining an open border between Northern Ireland and Republic of Ireland

Question 16

What is the effect of preserved EU law?

Answer 16

(a) The UK courts remain able to disapply statutes where they are incompatible with any EU law which continues to be preserved by the Withdrawal Agreement after the end of the transition period.

(b) s.7(C) EUWA requires the validity, meaning and effect of any preserved EU law to be decided in accordance with the Withdrawal Agreement. This means….

• Interpreted in conformity with case law of CJEU made before the end of the transition period
• UK Judiciary to have ‘due regard’ to case law of CJEU made after the end of the transition period
• UK Courts can continue to make preliminatry references to CJEU on questions concerning preserved law: (i) family and union citizen cases in cases which commenced within 8 years of the end of the transition period; (ii) for Northern Ireland Protocol, this is not time barred.

Question 17

Does EU preserved law need to be interpreted in conformity with CJEU case law?

Answer 17

It depends on when the CJEU judgment was made

• EU preserved law must be interpreted in conformity with case law of CJEU made before the end of the transition period
• UK Judiciary to have ‘due regard’ to case law of CJEU made after the end of the transition period - this gives them leeway since they are not under an obligation to interpret with conformity to decisions made post 31 December 2020..

Question 18

Does EUWA 2020 preserved law make the EU supreme over those areas?

Answer 18

No.

s..38 EUWA specifically assets that the UK Parliament remains sovereign and retains the right to overide EU Preserved Law if it discloses a deliberate intention to do so.

Question 19

What has happened to EU Law that has not been preserved?

Answer 19

EUWA provides for a second legal regime which has retained the bulk of non-preserved EU Law and has converted it into domestic UK law.

This retained law is now capable of being amended or repealed over time.

Retained Law is now known as ‘Assimilated Law’ - it includes all EU Law that is not preserved by s.7 EUWA.

Question 20

What is ‘Assimilated Law’ made up of?

Answer 20

• EU-Derived Domestic Legislation
• Direct EU Legislation - this includes regulations, EU decisions or tertiary legislation in force before the end of the transition period

Question 21

Is the supremacy of EU Law still applicable?

Answer 21

No

The principle of supremacy of EU Law ceased to be applicable where assimilated EU law is involved.

When interpreting assimilated law, the UK Courts must give effect to assimilated direct EU legislation in a way compatible with all domestic enactments.

If assimilated law and direct EU legislation is incompatible, domestic enactemnts overide the assymilated law.

Question 22

What is the general rule when it comes to interpreting assimilated law?

Answer 22

The UK Courts must give effect to assimilated direct EU legislation in a way compatible with all domestic enactments.

If assimilated law and direct EU legislation is incompatible, domestic enactemnts overide the EU Law.

Question 23

Can the general rule re interpreting assimilated law be changed?

s.7 REULA

Answer 23

Yes

Per s.7 REULA 2023, the interpretative obligation can be reversed so that domestic enactment shave to be read in a way compatible with the assimilated direct EU legislation.

If such an interpretation is not possible, the assimilated direct EU Law overrides the domestic enactment. The court or tribunal can issue an incompatibility order that notifies Government/Parliament of the incompatibility.

This is ONLY applicable where resulations made by UK Ministers and/or devolved authoirities specify that the relationship between specific enactments and assimilated law are regulated by s.7 REULA.

Question 24

How can assimilated law be amended?

Answer 24

s.7(4A) EUWA permits assimilated direct EU Legislation to be modified by primary and secondary legislation.

Secondary legislation allows…

• UK Ministers to make regulations dealing with deficiencies in assimilated law
• UK and Devolved Ministers to make regulations that restate, reproduce, revoke, replace assimilated law (this power ceases on 23 June 2026)
• UK Government and Devolved authoiries to make regulations that update assimilated law to account for technological and scientific developments.

Question 25

Are the courts bound/able to determine questions of validy/meaning/effect of assimilated EU law in accordance with CJEU case law?

Answer 25

Courts must determine such issues in accordance with CJEU case law that existed at the end of the transition period (Assimilated Case Law)

However this is subject to the following exceptions:

• This is in so far as the EU Law remains unmodified
• UK Courts are no longer able to make preliminary references to CJEU on questions of assimilated law
• The UKSC, Court of Appeal and Scottish High Court of Justiciary are not bound by assimilated case law. They can depart from it.

No court or tribunal is bound by any case decided by CJEU after the end of the transition period. However, courts may choose to have regard to them.

Question 26

A case involving the Equality Act 2010 comes before an employment tribunal after completion of the implementation period.

A case CJEU before the end of the implementation period supports one party.

Their opponent argues that, following the EU(W)Act 2018 (as amended), the tribunal is no longer bound to follow the CJEU’s decisions.

Is this correct?

Answer 26

No

Decisions of the CJEU continue to be followed by UK courts and tribunals if made before the completion of the implementation period.

This case was made before the end of the implementation period

Question 27

New UK legislation was passed after the implementation period.

Do law take precedence?

Answer 27

No.

Supremacy of EU law does not apply where new UK legislation was passed after CIP.

Question 28

What provision of REULA 2023 are not yet in force but will be implemented in the future?

Answer 28

s.6 REULA will change the test for the courts deciding whether to depart from assimilated EU case law.

This will no longer be based on the test used by the UKSC. Rather courts will have to have regard to

(a) the fact that decisions of a foreign court are not binding;

(b) any changes of circumstances which are relevant to the retained EU Case law; and

(c) the extent to which the assimilared EU case law restricts the proper development of domestic law

Question 29

What type of constitution does the UK have?

Answer 29

Uncodified

The constitutional rules cme from legislation, case law and conventions

Question 30

Where do the powers of government departments derive?

Answer 30

• Statute
• Common Law
• Royal Prerogative

These are exercised by senior ministers in the name of the monarch

Question 31

What are constitutional conventions?

Answer 31

Rules of constitutional practice that are regarded as binding in operation but not in law.

Conventions cannot be enforced in law. However courts recognise and protect coventions.

Question 32

Can the courts enforce conventions?

Answer 32

No.

Whilst the court will strike down conventions if they conflict law, they will not enforce breach of convention.

The main consequence of breach is political reputation

Question 33

Whar is the Salisbury Addison convention?

Answer 33

The HoL should not reject at second reading any government legislation that has passed the HoC if it carries out a manifesto committment

Question 34

What is the sewel convention?

Answer 34

Parliament will not legislate with regard to devolved matters without the consent of the devolved administration

Question 35

What conventions exist relating to the Executive?

Answer 35

• Monarch acts in accordance with advice given by his Ministers
• The monarch will not exercise his legal right to refuse royal assent to bills passed through Parliament
• The Prime Minister chooses the Cabinet Members
• Prime Minister and Chancellor should be MPs
• After a ‘vote of no confidence’ the governemnt will resign and advis the monarch to dissolve Parliament
• The monarch should be asked for consent to proposed legislation affecting interests of the monarchy

Question 36

What is the convention of collective ministerial responsibility?

Answer 36

• Discussions between ministers should remain confidential
• Once a policy line has been reached by ministers, all ministers must stick to it and maintain a united front. If they cannot, they must resign as minister.

Question 37

What is the convention of individual ministerial responsibility

Answer 37

Ministers ought to resign if there has been a significant policy failing

Question 38

Is the ministerial code enforceable?

Answer 38

It is not enforceable in any court.

The ultimate arbiter is the Prime Minister

Question 39

What is the effect of The Parliament Acts 1911 and 1949 are invoked in order to pass the Bill into law?

Answer 39

Provided the provisions of the Act are met, legislation can be passed without the approval of the House of Lords.

• The bill has been rejected by the House of Lords in two successive sessions
• At least one year has elapsed between the the first session that the Commons gave the bill its second reading; and the time in the second successive session that the Commons gave the bill its third reading.
• The Lords received the bill at least one month before the end of the two successive parliamentary sessions.
• The bill does not change between the two sessions, other than changes to reflect (a) passage of time; or (b) amendments made by the Lords in the first session

Before a bill can receive Royal Assent using the Parliament Acts, the Speaker of the Commons has to certify that the relevant conditions have been met

Question 40

What is the statutory retirement age of a judge?

Answer 40

70

Question 41

Can full time judges sit in the House of Commons?

Answer 41

No

Cannot sit per Disqualification acT 1975

Question 42

Can courts inquire into proceeding sin Parliament?

Answer 42

No per Article 9 Bill of Rights 1689

Question 43

Can you bring a civil claim against a judge in their judicial capacity?

Answer 43

No

Judges are immune fro legal proceedings for civil actions for actions done in their judicial capacity

However, magistrates may be liable for acts outside their jurisdiction if bad faith is proved.

Question 44

What are devolved matters?

Answer 44

Areas of government where decision-making has been delegated to devolved administration

Question 45

What are reserved matters?

Answer 45

Decisions taken by Parliament in Westminster, even though they have effect in Scotland, Wales and Northern Ireland

For example, defence, immigration and foreign policy

Question 46

Can Parliament legislate regarding devolved matters concerning Scotland?

Answer 46

Per the Sewel Convention, no

However, s.28)8 SA does not explicitly prevent Parliament from doing so - it says it would “not normally…”

The wording embodies the Sewel Convention without giving binding legel effect to it

This is the same in Walrs and Northern Ireland

Question 47

What are some ‘exceptions’ to the principle of equality before the law?

Answer 47

• Monarch is above the law
• Judges in higher courts immune for civil litigation
• Parliamentary Priviledge
• Diplomatic Immunity
• Children not treated as adults

Question 48

What is the effect of s.3 HRA?

Answer 48

A strong obligation on UK Courts to strive to interpret existing legislation in an ECHR compatible way

The case-law seems to suggest HRA has a ‘higher status’ than an ordinary statute that allows the judiciary to read in convention rights standards to all ‘ordinary statutes’

Question 49

What is the effect of a decleration of incompatibility per s.4 HRA?

Answer 49

The effect ie political not legal

It does not invalidate the law, merely flags the law and allows it to be a matter of political judgement

Question 50

What is the royal prerogative?

Answer 50

Every act which the executive government can lawfully do without authority of an Act of Parliament, is done by vitue of the prerogative

In practice, the Prime Minister exercises the prerogative

Question 51

What are the executive prerogative powers?

Answer 51

The government is responsible for….

• Recognition of sovereign states
• Making and Ratifying Treaties
• Diplomacy
• Passports
• British Overseas Territories
• Defence of the Realm
• Judicial Prerogative of Mercy

Question 52

What is the Judicial Prerogative of Mercy?

Answer 52

The Home Secretary may pardon those convicted of criminal offences prosecuted by the Crown

Question 53

What ‘personal prerogatives’ or ‘monarchial prerogatives’ does the Monarch still exercise?

Answer 53

• Appointing the Prime Minsiter
• Assenting Legislation
• Proroguing Parliament

Question 54

Does the soverign (personally) have immunity?

Answer 54

Yes, the sovereign cannot be prosecuted or sued for wrongful acts.

Question 54

Can the Crown be bound by statute?

Answer 54

There is a presumption the Crown is not bound

However, express words have been used/can be inferred that Parliament did intend to bind the Crown

Question 55

How are prerogative powers controlled?

Answer 55

• Parliament can modify/abolish/put on statutory footing
• Ministers are accountable to Parliament for all actions taken
• Constitutional conventions can be adopted to modify the effect of these powers.
• The courts

For example, historically PMs have been able to mobalise armed forces alone. However, in 2003 tony Blair sough Parliamentary Approval before Iraq. This created the ‘war powers convention’

Question 56

How do the courts control prerogative?

Answer 56

Prerogative has legal enforceability (unlike conventions)

Judges therefore determine how and what degree they control its use in the following ways;

• Determine whether a power is legitimately part of the royal prerogative
• Review the scope of a prerogative power (legality)

Question 57

What is the De Keyser Principle?

Answer 57

Statutory power is a superor form of power than prerogative.

It can suspect, if not permanently extinguish prerogative powers.

Question 58

When can international law be enforced against the UK State?

Answer 58

Where either…

(a) A claim is made against it to an international court (e.g ECHR); or

(b) The UK has incorporated international law rules into its domestic law by passing a statute so that it can be enforced by UK domestic courts

Question 59

What was the purpsoe of the HRA?

Answer 59

Incorporate the body of law in the ECHR into UK law so that domestic courts could enforce it

Question 60

What are the three types of protected ECHR right?

These are incorporated by the HRA 1998

Answer 60

• Absolute Right - These cannot be legitimately interfered with by the state
• Limited Rights - These can, in certain prescribed circumstances contained within the articles be legitimately interfered with by the State
• Qualified Rights - Within these rights, the first paragraph sets out the substantive right, and the second paragraph lists circumstances and methodology by which the rights may be lawfully interfered with by the statew

Question 61

What characterises an Absolute Right?

Answer 61

These cannot be legitimately interfered with by the state

For example…

Article 3 - No subjection to torture/inhumane treatment

Article 4: Prohibition on slavery and forced labour

Article 7: No punishment without lawful authority

Question 62

What characterises a Limited Right?

Answer 62

These can, in certain prescribed circumstances contained within the articles be legitimately interfered with by the State

These include..

Article 2: Right to life

Article 5: Right to Liberty

Article 6: Right to a fair trial

Question 63

What characterises a Qualified Right?

Answer 63

Within these rights..

• The first paragraph sets out the substantive right
• The second paragraph lists circumstances and methodology by which the rights may be lawfully interfered with by the state

To ‘interfere lawfully’ with a qualified right, it must be shown three requirments are met:

• Interference is prescribed by law
• Interference pursues a legitimate aim
• Interference is necessary in democratic society (proportionate)

Qualified rights include…

• Article 8: Right to respect for private and family life
• Article 9: Freedom of thought, conscience and religion
• Article 10: Freedom of expression
• Article 11: Freedom of assembly

Question 64

What type of ‘protected right’ is Article 8 Right to Private Life?

Answer 64

Qualified Right

Question 65

What type of ‘protected right’ is Article 9 Freedom of thought and religion?

Answer 65

Qualified Right

Question 66

What type of ‘protected right’ is Article 10 Freedom of expression?

Answer 66

Qualified Right

Question 67

What type of ‘protected right’ is Article11 Freedom of assembly and association?

Answer 67

Qualified Right

Question 68

What type of ‘protected right’ is Article 3 No subjecrtion to torture?

Answer 68

Absolute Right

Question 69

What type of ‘protected right’ is Article 4 prohibition of slavery?

Answer 69

Absolute Right

Question 70

What type of ‘protected right’ is Article 7 no punishment without lawful authority?

Answer 70

Absolute Right

Question 71

What type of ‘protected right’ is Article 2 the right to life?

Answer 71

Limited Right

Question 72

What type of ‘protected right’ is Article 5 the right to liberty?

Answer 72

Limited Right

Question 73

What type of ‘protected right’ is Article 6 the right to a fair trial?

Answer 73

Limited Right

Question 74

How do UK courts when enforcing ECHT protections through the hRA 1998 mechanisms, correctly interpret the Articles?

Answer 74

Utilise three principles….

(a) Positive Obligations
(b) Margin of Appreciation
(c) Principle of Proportionality

Question 75

What is the concept of Positive Obligation?

Answer 75

Negative Obligations require states to refrain from interfering with human rights

The concept of positive obligation means that States can, in certain circumstances, be under a duty to prevent violations of human rights being carried out by non-state actors

States often fulfil this positive obligation by enacting laws in their domestic legal system to prohibit and punish non-state actors who commit convention violations.

Question 76

What is the ‘margin of appreciation’ doctrine?

Answer 76

Contracting states to the ECHR are allowed a certain measure of discretion when taking legislative, administrative or judicial measures that restrict ECHR Rights.

The doctrine assumes the state has a better knowledge of the political and cultural traditions than the ECHR does.

However, this ‘discretion’ is subject to the supervision of the ECHR

Question 77

What is the principle of proportionality?

Answer 77

It is a key ECHR principle

• It is the standard that is contained in the qualified rights (Articles 8-11)
• It is the standard within the test for limiting the right to life (Article 2); and

It aims to strike a fair balance between general interests of the community and the protection of individual human rights

Question 78

What are the four obligations the HRA imposes on UK domestic law?

Answer 78

• Section 2: When determining legal questions, courts must take into account ECHR case law.
  …
• Section 3: Legislation must be read and given effect in a way that is compatible with ECHR rights
  …
• Section 4: If legislation cannot be read in a convention compatible way, the court may issue a decleration of incompatibility
  …
• Section 6(1): It is unlawful for ‘public authorities’ to act in a way incompatible with convention rights

Question 79

What is the ‘mirror approach’ and how does it relate to s.2 HRA?

Answer 79

s.2 HRA requires the courts and tribunals to determine questions relating to convention rights by considering

• Judgments
• Decisions
• Declarations
• Advisory Opinions

of the European Court of Human Rights

The mirror principle (Ullah) is that the national courts must keep pace with the Strasbourg jurisprudence as it evolves - no more, but no less.

However, in recent years the national courts have abandoned the mirror principles arguing that the process should not be one directional - there should be a dialogue between the courts.

Question 80

What is the s.6 HRA duty and what defences apply?

Answer 80

It is unlawful for public authoirities to act in a way that is incompatible with convention rights.

Public authorities have the benefit of a ‘statutory defence’ - they will not be in breach of s.6 if….

• The breach is required by primary legislation; or
• It is acting so as to give effect or enforce incompatible primary or subordinate lgislation

Question 81

What is a ‘public authority’ for s.6 HRA?

Answer 81

s.6 applies to two:

• Core public authorities
• Hybrid Public Authorities

It does not apply to….
* Westminster Parliament in Legislative Role
* Private Bodies (e.g. retailes selling clothes)

Question 82

What is a core public authority?

Answer 82

Bodies clearly intherently public

For example…
* Central government departments
* Local authorities
* Police
* HMRC
* Immigration Officers
* Prisons
* Courts & Tribunals

Question 83

What is a functional/hybric public authority
per s.6(3)(b) hRA?

Answer 83

These bodies are of a private nature but perform a function of a public nature

They may be liable in respect of the public function (but not any other private functions they may perform)

For example, the following have often been found to provide a ‘public function’…

• Housing associations
• Care homes

Caselaw suggests the following are relevant when assessing whether the function is of a public nature….

• Public funding
• Exercising statutory power
• Taking place of local authorities
• Providing a public service

Question 84

How can an applicant show they have standing to bring a claim agaisnt a public authority under HRA?

Answer 84

Applicant needs to show that they

• are/would be a victim of the unlawful act; and
• They are directly affected by the state action

Persons can be natural or legal, and include corporate bodies.

However, organisations/groups cannot bring actions on behalf of people whose rights may have been violated - they can only claim that their rights as an organisation have been violated.

Question 85

What are the time limits for bringing a claim under the HRA?

Answer 85

Actions must be commenced within one year of the date of the act complained of.

If it is a continuing matter, time only starts runnign when the violation ceases to operate.

Note the following exceptions…

• An extension may be granted by a court in exceptional circumstances if it is equitable to do so.
• If a HRA claim is made as a Judicial Review, the stricted JR time limits must apply

Question 86

What are the four main protected interests under Article 8 protection against arbitrary interference in private life?

Answer 86

A state must respect each person’s

• Private Life
• Family Life
• Home
• Correspondence

Question 87

How is the Article 8 Qualified Right balanced with general interests of the community?

Answer 87

The most direct application of balancing is the need to infringe the right if it is necessary in a democratic soeciety.

This will be is there is a pressing social need and the infringement is proportionate to the legitimate aim pursued.

Question 88

How does Article 8 impact the ‘right to human dignity’?

Answer 88

Humnan dignity is covered by Article 8

However the state have a wide margin of appreciation.

For example, on issues such as the right to die, the courts have said that Parliament is inherently better qualified to assess such an issue.

Question 89

How does AArticle 8 relate to stop and search?

Answer 89

There is a need for infringement with Article 8 for the protection of citizens by way of police searches

However, there must be sufficient safeguards to protect individuals against arbitrary interference.

Question 90

For Article 8, who constitutes ‘family’?

Answer 90

Family is not limited to marital relationships

It covers stable relationships and may enncompass de facto family ties.

Question 91

How broad is the Article 8 right to respect for home?

Answer 91

It includes not just the right to the physical area but the rught to be free of interference such as noise, nuisances and smell.

For example, the government comes under a positive obligation to manage and reduce noise levels around Heathrow Airport

Question 92

How does article 8 protect correspondence?

Answer 92

This applies to letters, emails, texts and other forms of communication.

For example, whilst it is proportionate to open letters sent to prisoners, to ensure no contraband, the letters should not be read unless there are exceptional circumstances where they believe the priviledge is being absued

Question 93

When can Article 8 be interfered with?

Answer 93

A state can interfere with the Right to Private Life if it is

(a) In accordance with the law
(b) Pursuing a Legitimate Aim - that means it is necessary and proportionate to…

• protect national security
• protect public safety
• protect the economy
• protect health or morals
• prevent disorder or crime, or
• protect rights and freedoms

Question 94

When can Article 10 (Freedom of Expression) be interfered with?

Answer 94

Restricted by the state if it is (as with Article 8)

• Prescribed by law
• Pursuing legitimate aims
• Necessary in a democratic society (proportionate)

Question 95

What does Article 10 freedoms contemplate?

Answer 95

The right to…
* Hold opinions
* Recieve ideas and infroimation
* Express views and opinions

This covers words, pictures, images and actions.

Expression includes….
* Political opinion
* Journalistic FreedoM
* Artistic Expression
* Commercial Information

Question 96

How does Article 10 impact the protection of reputation?

Answer 96

One restriction on Article 10 is the need to protect reputations and rights of others.

However, this must (as always) be proportionate.

• Politicians have to display greater degrees of tolerance to criticism since the limits of acceptable criticism are wider than for ordinary citizens.
• The right is restricted often in relation to other rights - for example, combatting racism since such expressions are ‘not in the spirit of the echr’

There are a variety of ways in which freedom of expression can be restrained including injunctions, confiscation of property and copyright law.

Question 97

Can a private citizen invoke convention rights against private parties?

Answer 97

The HRA is of vertical effect

However, s.6(3)(a) has created indirect horizontal effect - the courts/tribunals (as public authorities) must make decisions compatible with the convention even if both parties are private individuals.

Consequently, if there is a ‘pre-existing cause of action’ against one private party upon which to hang the convention right, the courts will hear such a case.

It is common for people to ‘hang’ their convention right on the ‘misuse of private information’

Question 98

A woman states that the police withheld food and water from her for 12 hours before her police interview.

What is the remedy against the police under the Human Rights Act 1998?

Answer 98

The actions of the police may constitute inhuman treatment contrary to Art 3 ECHR and be unlawful under s6 of the Human Rights Act 1998.

A civil action is therefore available under s7(1)(a) of the Human Rights Act 1998.

Question 99

A man has his disability benefits withdrawn by the Department for Work and Pensions

The man asks the DWP to write to his GP for his medical records but they do not do so.

The man appeals against the loss of his benefits but informs the tribunal that he is too ill to attend the appeal hearing, which happens eight weeks later.

The tribunal dismisses the man’s appeal without a hearing because of his failure to attend.

What HRA ground can he rely on?

Answer 99

Article 6 ECHR (Fair Trial) applies to welfare benefits appeals as these determine civil rights

The man did not have a fair hearing as the tribunal dismissed his appeal without a hearing despite being informed in advance that he was too ill to attend.

Question 100

Under HRA can you challenge the lawfulness of regulations (secondary legislation)?

What can the court do if secondary legislation is incompatible with a Convention right?

Answer 100

If it is not possible to read and interpret the Regulations compatibly with the Convention rights, then they can be quashed insofar as the primary legislation allows.

Otherwise, a declaration of incompatibility may be made. correct

Question 101

Can damages be awarded under the Human Rights Act 1998 in the Crown Court?

Answer 101

No.

Section 8(2) of the Human Rights Act 1998 provides that damages may only be awarded by a court that has power to award damages, or to order the payment of compensation, in civil proceedings.

Question 102

If an official investigation into a death is required, what rights to the victims next of kin have?

Answer 102

The procedural obligation to hold an effective official investigation into a death under Art 2 of the European Convention requires that in all cases the victim’s next of kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests

Question 103

What is a public procession?

What is required?

Answer 103

Written notice must be given of any proposal to hold a public procession for the following purposes:

• Demonstrate support/Opposition to views or actions of any persons or body of persons;
• To publicise a cause of campaign
• To mark or commemorate an event

… unless it is not reasonably practicable to give any advance notice.

To be a ‘public procession’ it must take place in a public place.

s.11(1) POA

Question 104

What constitutes advance notice for a public procession?

Answer 104

Minimum of 6 clear days notice of tie, date & route

Question 105

When won’t a public procession require advance notice?

What are the s.11(2) POA exceptions?

Answer 105

No notice is required…

(a) Where the procession is one commonly or customarily held in the police area in which it is proposed to be held; or

(b) It is a funeral procession organised by a funeral director acting in the normal course of business

Question 106

To constitute a commonly and customary procession (exempt from notice) must the route remain the same and event happen at the same time?

Answer 106

No

A monthly cycle race was held to fall within the exception despite the route changing each occassion and the nature of the events being spontaneous.

Question 107

When can the police impose conditions on a procession?

s.12 POA

Answer 107

If the senior police officer reasonably belives that the procession….

• may result in serious public disorder
• may result in serious damage to property
• may result in serious disruption to the life of the community
• may, due to the noise, disrupt the activities of an organisation carries out in the vicinity
• may, due to the noise, significantly impact persons in the vicnity
• the purpose is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do.

disorder, damage, impact or intimidation

Question 108

What constitutes a ‘senior officer’ when considering imposing conditions on processions?

Answer 108

It depends upon the stage of the procession

• Where the procession is being held or people as assembling: the most senior in rank of the police officers present at the scene
• Where the procession is intended to be held (not yet assembling) - the chief officer of police.

Question 109

If the risks of s.12(1) POA are met, to what extent can a senior police officer give directors for imposing condtions on persons organising or taking part in the procession?

Answer 109

Conditions as appear to him necessary to prevent such disorder, damage, impact or intimidation

Where imposed in advance of the procession, it must be in writing.

Question 110

Is it an offence for an organisers of a public processions to fail to comply with conditions imposed?

What is the sanction?

Are there any defences?

Answer 110

They are guilty of an offence under s.12(4) POA if they fail to comply with a condition they know or ought to know has been imposed.

Summary Conviction - Imprisonment for up to 51 weeks (or/and fine not exceeding level 4 standard scale)

It is a defence to prove that the failure arose from circumstances beyond his control

Question 111

Is it an offence for a person who takes part in a public processions to fail to comply with conditions imposed?

What is the sanction?

Are there any defences?

Answer 111

They are guilty of an offence under s.12(5) POA if they fail to comply with a condition they know or ought to know has been imposed.

A fine not exceeding level 4 on the standard scale

A mere participant cannot be imprisoned.

It is a defence to prove that the failure arose from circumstances beyond his control

Question 112

Can someone be guilty of inciting a participant to ignore a condition imposed on a public procession?

Note this does not apply to inciting an organiser.

Answer 112

Yes, an offence contrary to s.12(6) POA

Summary Conviction - Imprisonment for up to 51 weeks (or/and fine not exceeding level 4 standard scale)

Question 113

When can the police apply for a prohibition order from the local authority?

Who much apply?

Answer 113

The chief police officer can apply if they….

• Reasonably believe, that
• because of particular circumstances
• the powers under s.12 will not suffice
• to prevent the holding of the public procession resulting in serious publis disorder.

Question 114

How long can a prohibition order on a public procession last?

Answer 114

It cannot exceed 3 months.

Question 115

Once the police have applied for a public procession prohibition, who initiates this?

Not London….

s.13(1)

Answer 115

The local authoiry will need to obtain consent from the Home Secretary

The local authority are permitted to modify the request of the police

Importantly, the local authority does not have powers itself to initiate a prohibition.

Note, the procedure is different for London

Question 116

Once the police have applied for a public procession prohibition, who initiates this?

London….

Answer 116

S.13(1) does not apply for processions in London

No application to the Local Authority is required.

s.13(4) provides that a prohibition order can be made by the Commissioner of Police for the Metropolis or City of London

Question 117

Can prohibition orders on processions be challenged?

Answer 117

Yes, by Judicial Review

However, the courts are unwilling to unnecessarily disturb the operational decisions in relation to matters of public safety and security.

Question 118

What is a public assembly?

Answer 118

A meeting comprising two or more persons in a public place that is ‘wholly or partly open to the air’

Question 119

When can public assemblies be regulated?

Answer 119

s.14 POA allows regulation of public assemblies

Unlike public processions….

• The purpose of the assembly is irrelevant
• There is no obligation to give advance norice to the police

The police can impose conditions if the senior police officer reasonably belives the public assembly may cause disorder, damage, impact or intimidation (same as for public processions)

For example, short time limits on a meeting or maximum attendance limits.

As with s.12 for processions, where conditions are imposed in advance, it must be in writing.

The sanctions are similar to those for public processions.

Question 120

Can the police prohibit public assemblies?

Answer 120

No

Unlike public processions, the police do not have powers to instigate or make a prohibition order.

However per 2.14A the police can prohibit ‘trespassory assemblies’

Question 121

What is a trespassory assembly?

Answer 121

RThe police can apply for a prohibition roder from the local authority if there is an assembly of

• 20 or more persons
• Held on land to which the public has no right of access or only a limited right of access
• It is likely to be held without permission of the occupier or in a way that exceeds permission; and
• May result in serious disruption to the life of the communityl or if it is of historical, architectural, archaelogical or scienctific impirtance, in significant damage the land, building or monument

The land must be in the open air.

Question 122

What is breach of the peace?

Answer 122

The police have common law powers to maintain public order by preventing a breach of the peace.

There is a breach of the peace whenever…

• harm is actually and or likely to be done
• to a person or in his presence to his property or a person is in fear of being harmed
• through assault, affray, riot, unlawful assembly or other disturbance

Question 123

Is breach of peace a criminal offence?

What are the consequences?

Answer 123

No it is not a criminal offence

However it does allow the police to….

• Arrest
• Detain
• Bind Over a person (e.g. tell off)
• Enter a meeting to prevent anticipated breaches and ask persons to disperse

Police can ever without a warrant to prevent such breaches.

Question 124

For breach of peace powerss to arise lawfully, what must be feared?

Answer 124

A reasonable apprehension of a sufficiently imminent breach of peace.

When used, powers must not be arbitrary, and they must be deployed in good faith and proportionately.

Question 125

What is Judicial Review used for?

Answer 125

Checking the exercise of public power to ensure a decision has been made correctly and in accordance with law.

The court does not substitute their own decision for that of the decision maker, but can direct that the decision be made again correctly.

Question 126

What type of decisions are amenable to judicial review?

Answer 126

Only public law decisions are amendable.

This can be split into two categories:

(a) Core Public Bodies: this is when a decision is made by a public body carrying out a public function through the exercise of a statutory power. Bodies include central government, local authorities, inferior courts and tribunals, statutory bodies (e.g. Highways Agency)

(b) Non-Public Bodies that are ‘public in nature’: This includes self-regulatory bodies, and private companies who have jad services contracted out to them by public bodies.

Question 127

What are self-regulatory authoritities?

Answer 127

These are created to regulate various industries of acitivities.

For example, Datafin concerned regulation of financial services in the City of London - an unincorporated associations with no direct statutory powers

Question 128

When will a self regulatory body be amenable to judicial review?

Answer 128

A private body (e.g. self-regulatory authority) can be amendable to JR if they are performing ‘public law functions’.

One way of expressing the test is that had the body not been in existence carrying out the activity through priviate initivative, a body similar to it would have been set up by the government.

Such bodes will usually be found to be exercising public functions if the matter in question has the necessary public character

Question 129

Are decisions of self regulatory bodies always amendable to Judicial Review?

If not, when are the not?

Answer 129

No - the courts have held that ‘internal matters’ concerning soley private rights will not be amendable.

One way to look at this is to consdier, but for the self-regulatory authority carrying out the act, would Parliament intervene?

For example….

• A Jockey Clubs regulatory role was held not to be a ‘public function’ because they were in no sense governmental - all the powers came from agreement of the parties giving rise to private rights.
• The courts refused to consdier the internal matetrs within a religion that are of a private nature

Question 130

How have the courts side stepped the rule that bodies exercising purely private power based on the contractual relationship between the parties are not amenable to judicial review?

BraganzaPrinciples

Answer 130

The courts have injected into the contractual relationships by which governance is established, public law principles fashioned to regulate governmental decision making.

This is termed the ‘Supervisory Jurisdiction’

In such cases the function of the court is to ensure that the primary decision-maker has operated within lawful limits. Simply, the courts. imply into contracts judicial review-like principles

On one hand, this is the same as JR:

• The court does this to protect against abuses of power.
• The Court directly read public law principles into the law of contract.
• The Court imply the relevant public principles into the terms of the contract

However, there is a distinction between this and JR:

• Claims based on theBraganzaprinciples, as contractual claims, could not be streamed via judicial review procedure
• The prerogative orders will not be available for breach of theBraganzaprinciples. Rather, the relevant remedies will be contractual remedies

Question 131

What is the principle of procedural exclusivity?

Answer 131

Judicial review is the exclusive procedure for challenging public law decisions

Question 132

What are the exceptions to the principle of procedural exclusivity?

Answer 132

There are two exceptions to the principle that all public law decisions must be reviewed by Juidicial Review:

(a) When neither party pbjected to the use of private law procedure; or

(b) When the contexted decision is collateral (arising out of or incidentally to some other private law claim)

Question 133

What is the standing requirment for Judicial Review per s.31(3) SCA?

Answer 133

The court shall not grant leave unless the applicant has sufficient interest in the matter

Question 134

Who generally has standing for judicial review, excluding more uncertain categories?

Answer 134

Individuals or Organisations which are directly affected by Public Law Decisions

Question 135

Who other than those ‘directly affected’ may have a ‘sufficient interest’ to bring judicial review?

Answer 135

Depending on the context….

• Associations & Representative Groupds
• Pressure & Interest Groups
• Concerned Citizens

Question 136

When will the courts allow associations of individuals who all seem to have sufficient interest bring judicial review?

Answer 136

The courts are generally content for associations made up of sufficiently interested individuals to challenge matters in the communal interest.

Its easy to look as such ‘association cases’ as a means of efficient procuedure - deal with the case as one rather than multiple seperate individual judicial reviews.

Question 137

Will a pressure group ever have standign to bring judicial review?

Answer 137

In Fleet Street Casuals a liberal approach was embraced so that a pressure group would have sufficient standing despite not being directly affected.

There has been a progressive liberlisation…..

In Greenpeace, standing was granted due to their….
* National and International standing
* Genuine concern for the issue
* 2,500 members in the local area concerned
* Expertise of the organisation

In GRM standing was granted and the court held the following should be considered:

• Importance of vindicating rule of law
• Absence of other responsible challengers
• Seriousness of the matter
• prominent role of the applicant in giving advice and guidance on the subject (expertise)

Question 138

Can concerned citizens bring judicial review?

Answer 138

Concerned citizens may have ‘sufficient interest’ if they have ‘sincere concern’ about a particular public interest.

For example, a former political editor was given standing due to his ‘sincere concern for constitutional issues’

However, in DSD (2018) it was held that the Mayor of London did not have sufficient interest to bring a judicial review against the Parole Board decisions, since he was in no different position from any other politician or, indeed, any member of the public in relation to the Parole Board.

The tests seems to be that the ‘concerned citizen’ (a) needs sincere concern; and (b) if they did not have standing then no one else would

However, when there are obviously better-placed challengers, sufficient interest may be harder to prove

Question 139

What is the time limit for bringing a Judicial Review

Answer 139

A claim must be filed (a) promptly; and (b) no later than 3 months after the grounds arose

The courts have permission to extend time if they see it equitable to do so.

Question 140

What is the special time limit for planning decisions being filed for judicial review?

Answer 140

6 Weeks

Question 141

**

What is the special time limit for public procurement being filed for judicial review?

Answer 141

30 Days

Question 142

What is the effect of a total ouster clause?

Answer 142

A total ouster clause completely excludes judicial review.

The courts are hostile to such clauses.

There is a presumption that Parliament does not intend to exclude judicial review

In Ansiminic, a clause stating that any determination ‘shall not be called into quetion in any court of law’ did not prevent JR because the decision of the public body was not a determination but a purported determination - it used its interpretive powers to get around the clause.

In Privacy the court left open the possibility for oustrer clauses, noting that ‘more explicit wording would be required to be effective’

Question 143

What is the effect of a partial ouster clause?

Answer 143

Such a clause seeks to exclude court jurisdiction once a time limit has expired.

The courts take such clauses at face value.

Question 144

What must happen before a court grants permission for judicial review?

Answer 144

Alternative remedies and processes must be exhausted before the court will grant permission

These might include….
* Statutory rights of appeal
* Internal complaints
* Internal appeal procedures
* Complaints to ombudsman

There is an importance of avoiding litigation wherever possible.

Question 145

What is the procedure for bringing a judicial review claim?

Answer 145

Two stages:

Stage 1: Application for permission must be made to the Administrativer Court or Upper Tribunal (e.g. immigration, Criminal Injuries Compensation)

An applicant will only be granted permission if they have sufficient interest, it is made within time and there is an arguable case.

**Stage 2: **Full inter partes hearing (involving both sides)

Question 146

What are the two categories, and six remedies for Judicial Review

Answer 146

• Quashing order
• Prohibitory Order
• Mandatory Order
• Decleration
• Injunction
• Damages

Question 147

What is a quashing order?

Answer 147

It overturns the impugned decision

The public body must then take the decision again, applying the correct law

Question 148

What is a prohibitory order?

Answer 148

This prevents a public body from acting or continuing to act unlawfully

Question 149

What is a mandatory order?

Answer 149

This compels the public body to perform a public law duty imposed by law

Question 150

Can judicial review remedies be made on an interim basis?

Answer 150

Yes, they can be made on an interim or final basis.

Question 151

What is the ground of illegality for judicial review?

Answer 151

Public bodies must not act ultra vires - beyond its powers.

Illegality is a grounds of review designed to ensure that the exercise of power is confined within the limits prescribed.

Question 152

What are the five sub categories of illegality?

Answer 152

• Simple Ultra Vires Illegality
• Errors of Law
• Errors of Fact
• Abuse of Discretion
• Retention of Discretion

Question 153

What is simple illegality?

Answer 153

This is when a decision maketer goes beyond the boundaries of legal power given to them.

For example, a police officer arresting soemone for parking on a yellow line - since ther eis no such power of arrest in that situation, the arrest will be ultra vires.

Question 154

What are errors of law?

Answer 154

These errors involve the decision maker making a mistake regarding a question of law (e.g. misinterpreting the words of a statute)

Question 155

When are errors of law reviewable?

Answer 155

All errors of law are reviewable, with three qualifications where the courts will refuse to intervene….

• Where the error of law is not decisive (but for) to the decision
• Where the decision maker is interpreting a special system of rules the would are unwilling to intervene (e.g. statutes of an old university)
• Where the power granted is so imprecise that it is capable of being interpreted in a wife range of ways.

Question 156

What are the different types of errors of fact?

Answer 156

The following three types of ‘error of fact’ may be reviewed on grounds of illegality….

1. Precedent Fact- A decision maker’s power to decide on a particular matter depended on it making an initial finding of fact.
2. No Evidence for a Fact - If a finding of fact is supported by no evidence, the courts may overturn a decision on that basis.
3. Established Fact - If there is misunderstanding or ignorance of an established fact, or the decision maker acts on an incorrect basis of fact, the court may review.

Question 157

A local authoirty has statutpry powers to purchase land that is not ‘parkland’

A landowner objected due to the land being part of a park.

What type of error of fact is in question?

Answer 157

Error of Precedent Fact

The local authorities power depends on an initial finding of jurisdiction.

The court can review the decision because determination of whether the ladn was a park does to whether the decision maker has the necessary power in the first place

The question of ‘is this parkland’ is an initial finding of fact

Question 158

The Home Secretary has powers to detain ‘illegal entrants’

On what grounds could the court review a case as this?

Answer 158

Error of Precedent Fact

The court can review the facts to ensure the person was an illegal entrant

This is an initial finding of fact.

Question 159

If a decision maker takes a decision without any supporting evidence, what ground of review can be used?

Answer 159

No Evidence for a Fact

Question 160

If a decision is made but the decision maker misunderstood or was informed as to the facts involved, is there a grounds of judicial review?

Answer 160

Error of Established Fact

Question 161

What is a abuse of discretion?

Answer 161

It concerns the decision-maker misuing their statutory power in one of the following ways:

(a) Failing to take a relevant consideration into account; or taking an irrelevant consideration into account;

(b) Using the power for an improper purpose

Question 162

What two ways can a decision maker abuse their discretion in relation to the relevancy of considerations?

Answer 162

They may….

• Fail to take into account relevant considerations
• Take into account irrelevant considerations

Question 163

When will a purpose being improper?

Answer 163

Sometimes stautes clearly indicare a purpose for which it is granting a power. Other times, court imply a purpose.

A decision maker will have acted for an improper purpose if it neither conforms to the express or implied purpose.

Question 164

What does the ‘retention of discretion’ ground mean?

Answer 164

Decision makers must exercise their discretion and not ‘fetter’ or restrict themselves.

This ground arises in one of two ways…

(a) Fettering of Discretion

(b) Unlawful Delegation of Discretion

Question 165

When does a public body fetter their discretion?

Answer 165

When it acts in a way that hampers its ability to properly exercise a discretionary power.

This may include….
* Not exercising the power at al
* Adopting a rigid or blanket policy

Question 166

Does adopting a policy equate to ‘fettering discretion’?

Answer 166

No

There is nothing objectionable about adopting a policy per se.

However, the courts will not allow a decision maker to bind or fetter its discretion by adopting a rigid or blankety policy so that the outcome is decided in advance or without proper exercise of discretion.

Question 167

How can a decision maker adopt a policy without it being a ‘rigid blanket policy’?

Answer 167

The decision maker has to keep an open mind - it must be kept ajar.

Simply the decision maker must not shut its ears to applications

Question 168

What is the general rule of delegtation of discretion?

Answer 168

Generally, where a public body is empowered to make decisions by an Act of Parliament, the decision maker is not (unless expressly authoriserd) allowed to delegate that discretion to someone else.

Note, some statutes expressly allow delegation (e.g. local authorities may be allowed to delegate to council officers).

Question 169

What is the Carltona Principle?

Answer 169

Where discretion is conferred on a government minister, the courts will presume, in the absence of evidence to the contrary, that the minister is allowed to delegate their discreton to officials (civil servants) within the department even if statute doesn’t say so.

The official is the ministers alter ego. However, the minister remains politically accountable.

Question 170

Does the Carltona Principle apply to local authorities?

Answer 170

No. It applies only to the departments of the central government

It does not appy to local government authorities and other statutory bodies,

Question 171

Is unreasonableness a ground for judicial review?

Answer 171

Yes - a decisionmay be challeneged on the ground that the public body has acted unreasonably.

The test of Irrationality/Wednesbury Reasonableness is that a decision is ‘so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied their mind to the question to be decided could have arrived at it.

Question 172

What are the three classess of unreasonableness?

Answer 172

• Material defects in the decision making process
• Oppressive decisions
• Decisions that violate constitutional principles

Question 173

When will a material defect in the decision making process constitute unreasonableness?

Answer 173

There are two situations which may render a decision unreasonable…

(a) The decision maker wrongly weighted up relevant factors; or

(b) The decision maker failed to give comprehensive reasoning for the decision

Question 174

Travellers face eviction from local authority land

The local authority did not provide sites in their area (or temporary sites) because therre would be a delay reclaiming the land while temporary sites were found.

Why would this decision be unreasonable?

Answer 174

It wrongly weighed up relevant factors

No reasonable local authority would place more weight on the delay over (a) effets of eviction of the travellers; and (b) the impact on those likely to be effected elsewehere by travellers trespassing.

It was unreasonable.

Question 175

Is failing to provide a comprehensive chain of reasoning a ground for judicial review?

Answer 175

It is a sub-category of unreasonableness - sometimes described as ‘irrationality’

If there is no logical reasons for the decision, it will be unreasonable.

Question 176

Does an oppressive decision constitute an unreasonable one?

Answer 176

The court in cases like Wheeler have held unecessarily oppressive decisions and infringements of rights are unreasonable.

For example cases have held that the following decisions have been unreasonable due to oppresion…

• A policy that is unreasonably punitive
• Refusals to exercise discretion to refer prisoners to Parole Board

Question 177

What is the degree to which the courts will scrutinise decisions under Wednesbury Review?

Answer 177

The traditional standard was a very high threshold - the courts could only intervene if a decision was so unreasonable no reasonable authority could have come to it.

The standard has been modified over time so that there is a ‘varying scale’

• Sub-Wednesbury (High Intensity Review ) - Fundamental Rights
• Super-Wednesbury (Low Intensity Review) - Broad Social & Economic Policy

Question 178

What is the Super-Wednesbury standard and when is it used?

Answer 178

The courts are reluctant to review decisions relating to social and economic policy.

They give a higher degree of deference to the decision maker, applying a lower intensity of review.

Super-Wednesbury is the original standard that the court will only intervene if no reasonable decision maker would have reached the decision.

Question 179

What is the Sub-Wednesbury standard and when is it used?

Answer 179

When the courts are dealing with decisions concerning fundamental or human rights, the courts utilise a more intense degree of scrutiny (lower threshold) so that the court will intervene more readily.

The standard is simply whether a decision is one that a ‘reasonable authority’ could reach — expanding its reach beyond the utterly absurd as with the traditional standard.

Question 180

What role does proportionality have within judicial review?

Answer 180

The orthodox view is that proportionality is not a ground of review. The ground to use is Wednesbury Unreasonableness.

However, in light of the varying standard of reasonabelness, various courts have obiter suggested that proportionality should ‘sweep the rainbow of review’

Whilst there is an increasing significance of proportionality in domestic law, it is not yet a stand alone ground for judicial review

Question 181

What is procedural impropriety and when will it constitute a ground for judicial review?

Answer 181

This cocnerns a public decision maker’s failure to either….

(a) Observe the correct procedural statutory rules; or

(B) Act fairly per the common law duty of fairness

Question 182

How stringent will failure to observe procedural rules be interpreted?

Answer 182

The question is whether Parlaiment intended for non-compliance to result in the quashing of a decision

For example, in Cameroon Case it was held that failure to identify a country on a notice did not invalidate deportation since the purpose of the procedural requirment was to assist the person mconcerned, and the ability to present his appeal was not impaired by the failure to state destination.

Question 183

What are the two central common law rules concerning duty to act fairly?

Answer 183

(A) The right to be heard and present their case

(B) The rule against bias

Question 184

When does the duty to act fairly arise?

Answer 184

Administrative decisions and judicial decisions attract the duty to act fairly

Question 185

What is the level of the duty to act fairly?

Answer 185

The level of fairness owed to C varies dependinging on the context of th elegal issues

The more there is at stake to the individual, the higher the level of fairness they should have been owed.

For example….

• Where the overiding concerns relate to national security or public safety demanding urgent action, the duty to act fairlt applies only to a limited extent
• Where the decision does not entail countervailing issues of public interest, the duty of fairness depends on the right at stake. For example, a duty of fairness applies to liberty to work applications, but a higher level of fairness is expected in cases where jobs are being takenaway rather than given.

Question 186

Does a person have a right of notice of the case against them?

Answer 186

Yes

Failure to inform a person of evidence against them, or a decision affecting their interest can be said to breach the duty of fairness and often lead to procedural unfairness.

Question 187

Does a person have a right to make representations?

Answer 187

Yes.

however whether it is ‘fair for the representations to be confiend to written form or involve a oral hearing is context dependant.

It is not an automatic common law duty to hold an oral hearing.

For example, in cases concerning liberty the courts have favoured a need for oral hearings, stating (in the context of parole) that the board should ‘guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense”

Question 188

Is there a right to legal representation?

Answer 188

There is no general right to be legally represented.

However, whether the rejection of representation constitutes procedural unfairness depends on….
* Seriousness of the charge
* Likelihood that a point of law may arise
* Ability of the person to conduct his own case
* The need for a speedy process

Question 189

Can an applicant argue that the decision should be quashed because they were not given reasons for a decision taken?

Answer 189

There is no general common law duty to give reasons. However, in practice it seems that courts think decision makers should give decisions since failure to do so may constitute procedural unfairness.

The courts have held that a duty may arise if…..

• There is an absence of a right to appeal
• The decision concerns fundamental rights
• The decision is ‘so unexpected crying out for explanation’

On the contrary, such a duty may not arise if….

• It would be unduly onerous for the body due to the complexity
• There is no justification for not giving reasons.

Remember, additionally a duty to give reasons may be imposed by statite, and the courts have held that giving reasons is desirable sine it promotes accountability.

In c

Question 190

What is the rule against bias?

Answer 190

Decision makers cannot act fairly if there is a risk that they may be bias.

The rule disqualified anyone from decising a matter and can quash any decisions if they are made contrary to the rule.

Bias can occur in two ways…

(a) Direct Bias - An interest on the part of the decion-maker in the decision

(b) Indirect Bias - Bias due to the context (i.e. Porter v Magill Test)

Question 191

What is the rule against direct bias?

Answer 191

Direct bias is where a decision maker has a direct interest in the decision.

This results in automatic disqualification.

For example….
* a financial interest in the decision.
* Active involvement with organisations (e.g. Lord Hoffmanns director role in Amnesty international)

There does not need to be actual bias (e.g. the decision maker acted corruptly) - evidence of the direct interest is sufficient to invalidate the decision/

Question 192

When will membership of an organisation result in direct bias?

Answer 192

If exercising a judicial function, a judge will be disqualified if they are actively involved in an organisation that is a party to the impugned proceedings.

Mere membership is not sufficient to automatically disqualify a judge.

It has been held that the Pinochet Rule does not apply to people exercising non-judicial functions such as local authorities.

Question 193

What is the rule against indirect bias?

Answer 193

A decision maker (judicial or othe rpublic body) may be disqualified if a fair-minded and informed observer concludes there is a real possibility that the tribunal was bias.

A decision may be indirectl bias if….

• An unauthorised participant with an interest in the decision is present when the decision makers decide
• The body has already formed a view before considering the decision (this will only constitute bias if they have a ‘closed mind’ - a pre-disposition is not sufficient

Question 194

Will a government department who have formulated a strong polict be considered indirectly bias?

Answer 194

So lng as they hear objections against the policy and genuinely consider objections submitted, the holding of a strong policy will not constitute bias

Question 195

What is the ‘necessity’ exception to the rule against bias?

Answer 195

In some cases, if there is only one person empoweered to make decisions, they will not be disqualified for bias since the administrative process would grind to a halt.

Question 196

What is the judicial review ground of ‘legitimate expectation’

Answer 196

This ground related to the concept that an

• expectation of either
• a procedure or benefit
• arising out of a representation, promise or established practice
• by a public body
• may be protected by law

Question 197

What are the two types of legitimate expectation?

Answer 197

(A) Procedural Legitimate Expectation

(B) Substantive Legitimate Expectation

Question 198

What is a procedural legitimate expectation? How does it arise?

Answer 198

It can arise in two ways…

(a) A public body promised or represented that a particular procedure will be followed before a decision is made.

(b) There has been an established practice for the public body to use a particular procedure.

Question 199

What is a substantive legitimate expectation? How does it arise?

Answer 199

An assurance or promise that led to a person believing that they will receive a particular tangible benefit may be upheld entitling the person to the benefit itself.

Question 200

How does an expectation arise in the context of legitimate expectations?

Answer 200

It can only be generated by or on behalf of a public authority.

It may arise in the following ways….

(a) An express promise to individuals
(b) A representation laid down in policy
(b) Established past practice

For example, in GCHQ a long-standing practice of consulting trade unions before the the service conditions of staff were altered gave rise to a legitimate expectation to be consulted/

Question 201

When is an expectation ‘legitimate’ ?

Answer 201

Legitimacy turns on a number of factors…..

• Clarity: The promise must be clear & unambigious. The past practice must be widespread and well established
• Legality: It must be within the powers of the public authority
• Agency: It must be made by someone authorised to make such a promise
• The person claiming the expectation must have knowledge on the representation before the decision

Question 202

In relation to the legality requirment of legitimate expectations, does the promise giving rise to the alleged expectation need to be made by the person/body who may be bound by it?

Answer 202

No so long as they are authorised to act.

Foor example, a promise by one government department can be bidning on another government department.

Question 203

Can a representation be the. subject of a legitimate expectation if the public authority making it, did so in the mistaken belief that it was under a statutory duty to do what it promise, but later discovered it was not?

Answer 203

Yes

Even if they do not have a statutory duty, so long as it ‘lay within the powers’ then they must fulfil it.

Question 204

Is it necessary for a party to have relied on an expectation for it to be deemed legitimate?

Answer 204

No.

Detrimental reliance is not a determinative factor. However, it is a relevant consideration when considering whether the adoption of a policy in conflict with the promise is an abuse of power

Question 205

On whom does the burden of proof lie to show that a legitimate expectation has been frustrated?

Answer 205

It is on the public body to defend itself by showing that there was a sufficient public interest to override the legitimate expectation

Question 206

What will happen if a court decides a procedural legitimate expectation is frustrated?

Answer 206

Generally, the importance of fairness dictates the expectation is fulfilled unless there is a compelling public interest reason not to do so.

For example, significant national security interests dicating speedy action so that the expectation of a consultation period was frustated legitimately.

Question 207

What will happen if a court decides a substantive legitimate expectation is frustrated?

Answer 207

The courts have moved towards a conception of proportionality when considering the lawfulness of frustration.

The approach is as follows.

• In high policy or macro-policy contexts the courts will apply a rationality (Wednesbury Reasonableness) standard of review to decide whether it was ‘reasonable’ to frustrate the expectation (high threshold)
• In other cases, the question will be whether frustration was proportionate with the overridng interest

Question 208

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Question 209

If a statutory instrument (SI) has been introduced by a minister subject to the affirmative resolution procedure, what must happen for it to come into effect?

Answer 209

The affirmative resolution procedure requires that both Houses of Parliament must explicitly approve the SI for it to come into effect

Question 210

What bills are usually debated on Fridays in the House of Commons?

Answer 210

Private Member Bills introduced by MPs who are not affiliated with the government introducing the bil

Question 211

When can a High Court case be held at a regional centre (e.g. Manchester)

Answer 211

High Court judges sit at regional centres, including Manchester, and handle a variety of cases beyond just administrative or family law.

Remember, regional centres, including Manchester, can handle complex commercial cases. Important cases are routinely heard outside of London for local relevance.

Question 212

What powers does a select committee have to compel attendance to give evidence, and who else can be compelled to give evidence?

Answer 212

The select committee can issue a summons but not a warrant.

It can compel private individuals and civil servants but not sitting Members of Parliament.

Question 213

Are all prerogative powers justicible?

Answer 213

No. Prerogative powers are generally reviewable unless they pertain to high policy matters, as illustrated by the GCHQ case

Some prerogative powers, particularly those involving high policy matters like national defence, are non-justiciable as they are not suitable for court adjudication.

Question 214

On what basis may the court decide to review the Home Secretary’s use of the prerogative of mercy?

Answer 214

The court may review the decision because the Home Secretary appears not to have taken all the relevant factors into account in relation to a subject area which falls within the competence of the judiciary.

The courts have shown a willingness to review executive decisions involving the prerogative of mercy, especially in a context like this, involving new evidence, where the judiciary have an accepted competence.

Question 216

When can the Hansard be relied upon for statutory interpretation?

Answer 216

Where speeches of the relevant minister or promoter of the Bill have set out Parliament’s intentions.

Question 217

What is the basic rule for JURISDICTION and bringing a claim under the ECHR?

Answer 217

This is based on the principle that jurisdiction under Article 1 ECHR is primarily territorial

Question 218

During a military operation outside of its territory, State A detains an individual, Citizen B, who is not a national of State A.

Citizen B alleges that they have been subjected to inhumane treatment during the detention by State A’s forces.

State A is a contracting state to the ECHR.

Is there an exception to the jurisdictional limit for bringing ECHR claims? In other words, can B bring a claim under ECHR despite (a) not being a national of the country; and (b) the incident taking place outside of jurisdiction?

Answer 218

Yes, because State A exercised effective control over Citizen B during the military operation, thereby extending its jurisdiction extra-territorially

Question 219

Does a minister in charge of a bill need to issue a statement of compatability with ECHR rights?

When?

Answer 219

Yes

s.19 of the HRA 1998 requires the minister in charge of a bill to make a statement before the second reading of the bill in Parliament, confirming their belief that the bill’s provisions are compatible with the ECHR rights.

If the minister believes the bill is not compatible, they may make a statement to that effect instead.

Question 220

What must an organisation show to bring a claim under s.7 HRA for violation of convention rights?

Answer 220

An applicant must show that they have been directly affected by a potential violation of an ECHR right in order to be seen as victim

A campaigning group such as this one may have a close interest in the matter but, unless it has been directly affected as an organisation by a breach, it will not be granted standing.

Note, this is more restrictive than judicial review standing post WDM.

Question 221

What is the correct expedited remedial action under Section 10 of the HRA 1998 following a declaration of incompatibility?

Answer 221

A minister can ask for a draft amending order to be prepared which corrects the incompatibility of the legislation, if there are compelling reasons for doing so.

This order should be laid before Parliament for 60 days before it is approved by both Houses

This allows the government to amend the legislation as necessary to remove the incompatibility, subject to parliamentary approval.

Question 222

Per s.14(1) what level of behaviour is needed for the police to impose conditions?

Answer 222

The behaviour has to be intimidatory and sufficiently hostile.

For example, if a protest is ‘scary’ but staff can still come and go into the embassy, it probably isn’t ‘sufficiently hostile’

Question 223

Are football fans shouting abuse at fans sufficient to result in an arrest for ‘preventing breach of peace’

Answer 223

No.

Simple abuse hurling provides no suggestion that such fans are about to cause physical harm to others or to incite other forms of disorder.

Question 224

Can article 6 rights to a fiar trial be engaged if you are not charged with an offence?

Answer 224

No

For example, breaches of PACE wouldn’t give rise to an Article 6 claim

Whilst article 6 can apply to the whole criminal process, including the pre-trial stage from the point of arrest, this is contingent upon the applicant being charged with an offence.

Question 225

Are Remembrance Day processions and ceremonies exempt from giving notice to the police?

Answer 225

Yes

Remembrance Day processions and ceremonies would be considered exempt from the duty in s. 11 as they are processions “commonly or customarily” held in the police area.

Question 226

Can an individual be compelled to assist the investigating or prosecuting authorities to his or her detriment?

Answer 226

No.

In relation to arts 6(1) and (2) an individual cannot be compelled to assist the investigating or prosecuting authorities to his or her detriment.

Question 227

Where can details of repealed earlier statutes be found in an act?

Answer 227

In the final schedules in the statute which can be located form the table of contents.

Question 228

Is the Court of Appeal, Criminal Division. bound to follow its own previous decisions?

Answer 228

No.

Although they are strongly persuasive, the Court of Appeal, Criminal Division is not bound to follow its own previous decisions.

However, unlike the Criminal Division, the Civil Division of the Court of Appeal is normally bound by its own earlier decisions.

Question 229

Does a solicitor have a right of audience in the High Court?

Answer 229

. Solicitors are not precluded from having certain automatic rights of audience in the High Court.

However they are limited. The solicitor has an automatic right of audience in chambers but not in open court.

Question 230

What court is the highest court for a solicitor with higher rights of audience to advocate in?

Answer 230

Supreme Court.

Question 231

A reported case will show a date within its report citation.

What date is this?

Answer 231

It is the date on which the case was reported.

When considering the relevance of cases as precedents, it may therefore be important to check the date the judgment was handed down in each case rather than relying on the date in the case report citation.

Question 232

Does a solicitor have an autoatic tight of audience in the Crown Court?

Answer 232

No

A solicitor, who is not a solicitor advocate, will not have an automatic right of audience in the Crown Court.

Question 233

What three main courts does a solicitor have rights of audience in without futher qualifications?

Answer 233

• Magistrates’ courts
• County Court
• Family Court

Question 234

Are ECtHR decisions binding?

Answer 234

ECtHR decisions are persuasive but not binding on UK courts.

However, the Court has an obligation to interpret an Act of Parliament in a way which makes it compatible with the European Convention on Human Rights

Question 235

Can the House of Lords prevent a Bill from becoming law?

Answer 235

No.

The House of Lords can delay for up to one year and force further scrutiny but cannot ultimately prevent a Bill from becoming law.

Question 236

How does UK Parliament pass a non-devolved issue into law in Wales?

Answer 236

The UK Parliament must first gain the assent of the Assembly.

The UK Parliament has the power to legislate on any matter but does require the involvement of the Senedd when it relates to a devolved matter which will affect Welsh law.

Question 237

Can judges be members of a political partty?

Answer 237

They should normally resign from any political party they may belong to and/or should not become members of any political party.

Question 238

How is a UKSC judge appointed?

Answer 238

A successful applicant’s name is forwarded to the prime minister who, in turn, sends the recommendation to His Majesty The King who makes the formal appointment.

Question 239

What powers do Justices’ legal advisors (formerly known as justices’ clerks) have?

Answer 239

They have both a judicial function and an advisory function.

Although their main role is to provide legal advice to magistrates, they also have the powers of a single magistrate, for example to issue a summons, adjourn proceedings or extend bail.

Question 240

Can solicitors make unsolicited approaches to advertise additional services?

Answer 240

Yes, to current and former clients.

A solicitor cannot make an unsolicited approach to members of the public regarding the advertising of the firm’s legal services, but this does not apply to current or former clients.

Question 241

Can a public procession take place on shorter notice?

Answer 241

A procession can take place at short notice if as much notice as is reasonably possible is given.

For example, a serious terror attack in London results in widespread public safety concerns. A procession is organised two days after the attack in support of a call for increased security measures. As a result of the speed with which the procession is organised, no notice of the procession is given to the police.

Question 242

Is an undertaking given orally an undertaking?

Answer 242

Yes

It can be given orally or in writing and does not have to include the word ‘undertake’. correct