common mistakes

Question 1

which case stated that constitutional conventions are not enforceable in courts?

Answer 1

Madzimbamuto

see also Johnathan Cape v AG = A court can restrain publication of Cabinet material only where there is breach of confidence or it is in the public interest to do so to protect collective Cabinet responsibility.

Question 2

who called the Westminster System of government an ‘elective dictatorship’?

Answer 2

Lord Hailsham in Dilemma of democraty: diagnosis and prescription.

Lord Hailsham, in the Dilemma of Democracy: Diagnosis and Prescription (1978). He begins by considering the doctrine which gives Parliament absolute and unlimited legislative powers. The question is whether this doctrine ought to be modified because of changes in the way Parliament is structured and operates. The basis of his argument is that there has been a continuous enlargement of executive power and a corresponding decline of parliamentary influence. All effective powers are placed in the hands of the executive and the checks and balances, which in practice used to prevent abuse, have now disappeared. Another major factor is the development of the whip system. Whips are MPs or Lords appointed by each party in Parliament to help organize their party’s contribution to parliamentary business. One of their responsibilities is making sure the maximum number of their party members vote, and vote the way their party wants. In Lord Hailsham’s opinion this gives the whips, party leaders, and the executive the power to control Parliament and suppress the debate and argument which once dominated the parliamentary scene. He concludes that elective dictatorship is a fact and not just a lawyer’s theory.

Question 3

what is a programming motion?

Answer 3

A programme motion can be used by the government to timetable a Bill’s progress through the House of Commons by setting out the time allowed for debate at each of its stages. The motion is usually put forward for agreement immediately after a Government Bill has passed its Second Reading.

Question 4

Re Allister and Thoburn: what about constitutional statutes?

Answer 4

This recent case could be read as an example of the absence of “constitutional statute” but there was no implied repeal so Allister may not overrule Thoburn.

Question 5

what is the status of treaties in the Constitution?

Answer 5

They are made by the executive through prerogative power.

Question 6

when will a quashing order have the greater impact?

Answer 6

when the JR claims that succeded regarded a substantive matter and not a procedural one.
=> this is because a qo on a procedural claim does not compel the decision-maker to reach a different decison.

Question 7

why can injunctions be prefereable to prohibiting orders?

Answer 7

they can be granted in interim as well as in final form.

Question 8

what is the key principle in Congreve v Home Office

The Wireless telegraphy Act 1949

Answer 8

A public body must exercise a discretionary power for the purpose for which it is granted. If a statute states the purposes for which discretion is to be exercised, the courts will treat the stated purposes as exhaustive. If the power is exercised for any other purpose the public body’s action or decision will be ultra vires.

Question 9

which judged in Daly stressed that proportionality did not amount to a merit-based review?

Answer 9

Lord Slynn

Question 10

what are the main criticism of the Miller II case?

is Miller an ‘orthodox’ application of public law constitutional principles as Elliott argues ( P sovereignty and Govt accountability)

Answer 10

some describe this case as an instance of judicial overreach ( Professor Ekins) and think that the court discussed the exercise of the prerogative power rather than the scope and existence ( these can be limited by the courts following the Case of Proclamations)
Mark Eliott argues that the SC merely used the ‘justification’ as pre-requisite step to the existence of the prerogative power so in fact it did discuss its existence rather than its scope.
Regarding the principe of legality, Eliott stresses (using a quote from Alison Young) that it is not confined to statutory interpretation but goes beyond that and is also applicable to the limits that the courts can place acts of the executive.

Question 11

who is the man that was killed in the tube by mistake thinking he was a terrorist?

Answer 11

Jean Charles de Menezes. not that the echr held that the uk had not breached its duty under art. 2

Question 12

what about art 11 in the context of counter-protests?

Answer 12

in Öllinger v Austria,13 two groups wished simultaneously to hold ceremonies in the same Salzburg cemetery: one commemorating Jews killed by the SS (‘the Jewish ceremony’), the other commemorating SS soldiers killed during the Second World War (‘the SS ceremony’).14 The SS ceremony had been held every year for 40 years, and the Jewish ceremony was planned p. 865↵as a protest—a counter-demonstration—against it. Faced with this prospect, the Austrian authorities banned the Jewish ceremony, arguing that this was necessary to avoid a risk of conflict between the two groups, and to protect the rights of other people who simply wished to attend the cemetery. But what of the rights of those wishing to hold the Jewish ceremony?
=> In absence of any proof of violence or dangerous behaviour, the court held that the restrcition was neither necessary or proportionate thus the ban was a violation of article 11.

reminds of Beatty v Gillbanks.

Question 13

what is a breach of peace ?

Answer 13

a common law ( as opposed to statutory) power to control and restrict freedom of assembly

breach of the peace’ is the narrower one set out in R v Howell. A breach of the peace arises whenever any one of the following three things occurs or is likely to occur as a result of violence:

• A person is injured.
• A person fears being injured.
• A person’s property is damaged in his presence.

Breach of the peace is not itself an offence, but it triggers police powers to intervene in relation to those who are causing the breach

Question 14

what is PACE ( Police and Criminal evidence Act) 1984 s 24?

Answer 14

a police constable may arrest sn without a warrant in certain circumstances.

Question 15

what power does the Public Order Act 1986 bestow upon the Police?

Answer 15

• part I of the Act criminalises a number of conducts
• s 11: need a 6 days notice before organising a protest.
• s 14: power to regulate public assemblies ( 2+ ppl, public, open air): when the assembly may cause serious disorder, disruption and damage or intends to intimidate => the police may then impose conditions (duration, participants, location…)
• s14A: power to ban trespassory assemblies ( 20+ ppl, not public) need a reasonable belief in risk of DDD and the agreement of the secreatary of state.
  ex. in DPP v Jones, the House of Lords rejected that the highway was only to be used for travelling

Question 16

can you explain the court’s reasoning in Austin?

Answer 16

it held that the legitimacy of the objective was a pre-requisite of whether there was a restriction at all.as there was a legitimate purpose, there was in fact no deprivation.

Note Saadi v UK the ECtHR held that if detention is arbitrary—for example, if the deprivation goes on for longer than is necessary or is imposed in bad faith—then it will automatically contravene Art

Question 17

Error of law vs error of fact?

nb: there is a fine line between them as acknowledged by the courts.

Answer 17

In Pullhofer, the courts treated the word accomodation as an question of fact for the authority ot determine.

In Jones v First-tier Tribunal, the Court indicated that whether something is to be characterised as an issue of law or fact may turn, in part, upon to what extent close judicial scrutiny is felt to be warranted.

Question 18

can ultra vires legitimate expectation be granted?

Answer 18

not at the moment but consider for a second that it would mean that authorities would no longer depend on the law to set their limits to their jurisdiction.

Question 19

can you provide an example of the inherent flexibility of Constitutional conventions?

Answer 19

for instance some conventions are more clearly defined than others ( proving once again that the again is a political rather than a legal constitution)
ex. the convention that sending troops overseas would be dependant on a Parliamentary approval ( since 2003 Iraq) however this convention has been undermined by the sending of troops to Syria in 2018.
=> shows that some conventions evolve according to political and diplomatic crises this may undermine and impact their certainty.

Question 20

can you give an example of an entrenchment clause?

Answer 20

s 1 of the Northern Ireland Act provides that it will remain a part of the UK unless there is a referendum showing the contrary.

Question 21

how long is the UK’s average response time to declaration of incompatibilty?

Answer 21

25 month ( ex. France only one)

Question 22

bias

Answer 22

ditinguish the automatic disqualification rule (R v Bow Street Metropolitan Sitipendary Magistrate, sx p. Pinochet) and the apparent bias ( Porter v Magill)

Question 23

what is one take-away of the case City of London v Samede and others?

Answer 23

the assessment of whether the restriction of freedom of assembly does not not amount to a deprivation is ‘fact-sensitive’.

Question 24

Note that the HRA 1998 does not have horinzontal effect

Answer 24

see Baroness hale in Campbell v Mirror Group.

Question 25

which topics must always be discussed not matter the question.

+ nothing to do with that but do note the misconception surrounding the idea of ‘unwritten constitution’ therefore it is better referred to as an uncodified constitution.

Answer 25

PS, RoL, judicial Review, HRA 1998, separation of powers