Public Law (Underlying) Flashcards

Question

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

Answer 1

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.

Answer 2

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

Answer 3

No. Supremacy of EU law does not apply where new UK legislation was passed after CIP.

Answer 4

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

Answer 5

Uncodified The constitutional rules cme from legislation, case law and conventions

Answer 6

* Statute * Common Law * Royal Prerogative These are exercised by senior ministers in the name of the monarch

Answer 7

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.

Answer 8

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

Answer 9

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

Answer 10

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

Answer 11

* 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

Answer 12

* 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.

Answer 13

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

Answer 14

It is not enforceable in any court. The ultimate arbiter is the Prime Minister

Answer 15

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

Answer 16

No Cannot sit per Disqualification acT 1975

Answer 17

No per Article 9 Bill of Rights 1689

Answer 18

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.

Answer 19

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

Answer 20

Decisions taken by Parliament in Westminster, even though they have effect in Scotland, Wales and Northern Ireland For example, defence, immigration and foreign policy

Answer 21

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

Answer 22

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

Answer 23

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'

Answer 24

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

Answer 25

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

Answer 26

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

Answer 27

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

Answer 28

* Appointing the Prime Minsiter * Assenting Legislation * Proroguing Parliament

Answer 29

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

Answer 30

* 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'

Answer 31

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)

Answer 32

Statutory power is a superor form of power than prerogative. It can suspect, if not permanently extinguish prerogative powers.

Answer 33

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

Answer 34

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

Answer 35

* **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

Answer 36

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

Answer 37

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

Answer 38

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

Answer 39

Qualified Right

Answer 40

Qualified Right

Answer 41

Qualified Right

Answer 42

Qualified Right

Answer 43

Absolute Right

Answer 44

Absolute Right

Answer 45

Absolute Right

Answer 46

Limited Right

Answer 47

Limited Right

Answer 48

Limited Right

Answer 49

Utilise three principles.... (a) **Positive Obligations** (b) **Margin of Appreciation** (c) Principle of **Proportionality**

Answer 50

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.

Answer 51

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

Answer 52

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

Answer 53

* 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

Answer 54

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**.

Answer 55

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

Answer 56

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)

Answer 57

Bodies clearly intherently public For example... * Central government departments * Local authorities * Police * HMRC * Immigration Officers * Prisons * Courts & Tribunals

Answer 58

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

Answer 59

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.

Answer 60

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

Answer 61

A state must respect each person's * Private Life * Family Life * Home * Correspondence

Answer 62

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.

Answer 63

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.

Answer 64

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.

Answer 65

Family is not limited to marital relationships It covers stable relationships and may enncompass de facto family ties.

Answer 66

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

Answer 67

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

Answer 68

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

Answer 69

Restricted by the state if it is (as with Article 8) * Prescribed by law * Pursuing legitimate aims * Necessary in a democratic society (proportionate)

Answer 70

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

Answer 71

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.

Answer 72

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'

Answer 73

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.

Answer 74

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.

Answer 75

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

Answer 76

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**.

Answer 77

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**

Answer 78

**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

Answer 79

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

Answer 80

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

Answer 81

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**.

Answer 82

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

Answer 83

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.**

Answer 84

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.

Answer 85

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

Answer 86

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

Answer 87

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)

Answer 88

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.**

Answer 89

It cannot exceed 3 months.

Answer 90

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

Answer 91

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**

Answer 92

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

Answer 93

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

Answer 94

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.

Answer 95

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'

Answer 96

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.

Answer 97

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**

Answer 98

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.

Answer 99

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.

Answer 100

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.

Answer 101

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.

Answer 102

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

Answer 103

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**

Answer 104

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

Answer 105

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 the Braganza principles, as contractual claims, could not be streamed via judicial review procedure * The prerogative orders will not be available for breach of the Braganza principles. Rather, the relevant remedies will be **contractual remedies**

Answer 106

Judicial review is the **exclusive** procedure for challenging public law decisions

Answer 107

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)

Answer 108

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

Answer 109

Individuals or Organisations which are **directly affected** by Public Law Decisions

Answer 110

Depending on the context.... * Associations & Representative Groupds * Pressure & Interest Groups * Concerned Citizens

Answer 111

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.

Answer 112

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)

Answer 113

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

Answer 114

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.

Answer 115

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**'

Answer 116

Such a clause seeks to exclude court jurisdiction once a time limit has expired. The courts take such clauses at face value.

Answer 117

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.

Answer 118

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)

Answer 119

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

Answer 120

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

Answer 121

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

Answer 122

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

Answer 123

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

Answer 124

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.

Answer 125

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

Answer 126

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.

Answer 127

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

Answer 128

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.

Answer 129

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.

Answer 130

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**

Answer 131

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.**

Answer 132

Error of Fact - No Evidence for a Fact

Answer 133

Error of Established Fact

Answer 134

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**

Answer 135

They may.... * Fail to take into account **relevant** considerations * Take into account **irrelevant** considerations

Answer 136

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.

Answer 137

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

Answer 138

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

Answer 139

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.

Answer 140

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

Answer 141

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).

Answer 142

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.

Answer 143

No. It applies only to the departments of the central government It does not appy to local government authorities and other statutory bodies,

Answer 144

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.

Answer 145

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

Answer 146

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**

Answer 147

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.

Answer 148

It is a sub-category of unreasonableness - sometimes described as 'irrationality' If there is no logical reasons for the decision, it will be unreasonable.

Answer 149

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

Answer 150

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

Answer 151

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.**

Answer 152

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.

Answer 153

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

Answer 154

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

Answer 155

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.

Answer 156

(A) The right to be heard and present their case (B) The rule against bias

Answer 157

Administrative decisions and judicial decisions attract the duty to act fairly

Answer 158

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.

Answer 159

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.

Answer 160

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"

Answer 161

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

Answer 162

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

Answer 163

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)

Answer 164

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/

Answer 165

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.

Answer 166

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

Answer 167

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

Answer 168

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.

Answer 169

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

Answer 170

(A) Procedural Legitimate Expectation (B) Substantive Legitimate Expectation

Answer 171

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.

Answer 172

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.

Answer 173

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/

Answer 174

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

Answer 175

No so long as they are authorised to act. Foor example, a promise by one government department can be bidning on another government department.

Answer 176

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

Answer 177

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

Answer 178

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

Answer 179

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.

Answer 180

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

Answer 181

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

Answer 182

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

Answer 183

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.

Answer 184

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.

Answer 185

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.

Answer 186

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.

Answer 187

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

Answer 188

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

Answer 189

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

Answer 190

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.

Answer 191

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.

Answer 192

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.

Answer 193

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'

Answer 194

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.

Answer 195

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.

Answer 196

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.

Answer 197

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.

Answer 198

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

Answer 199

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.

Answer 200

. 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.**

Answer 201

Supreme Court.

Answer 202

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.

Answer 203

No A solicitor, who is not a solicitor advocate, will not have an automatic right of audience in the Crown Court.

Answer 204

* Magistrates' courts * County Court * Family Court

Answer 205

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

Answer 206

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.

Answer 207

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.

Answer 208

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

Answer 209

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.

Answer 210

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.

Answer 211

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.

Answer 212

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.

Answer 213

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

Answer 214

Private Members' Bills introduced by MPs or Lords who are not part of the government.

Answer 215

It must be **imminent**. A simple possibility protestors may try to cause trouble is insufficient.

Answer 216

**Midnight** at the **start** of the day assent is given. For example, if royal assent is given at 3pm on Tuesday, the bill commenced at 12pm on the Tuesday (preceding the royal assent).

Answer 217

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