CONAD & EU Law Flashcards
(129 cards)
1
Q
How can the UK’s Constitution be described?
A
Unwritten - no single written document setting out how the government should operate and citizens rights.
Monarchical - unelected Monarch as the Head of State.
Unitary - single sovereign legislative body with power concentrated at the centre (Parliament at Westminster).
Flexible
Informal separation of powers - no formal mechanism exists to keep the Executive (Government), the Legislative (Parliament) and the judicial (courts) branches of State separate.
2
Q
What is the main advantage of the UK having an unwritten constitution?
A
Easy for Parliament to make significant changes to the Constitution by enacting any legislation it wishes, with courts unable to strike it down for being unconstitutional.
3
Q
What are each of the 3 branches of Government responsible for?
A
The legislature (Parliament; comprising of Monarch, HOL and HOC) - body that makes the law.
The executive (Government; comprising of Monarch, PM, and other Government ministers, civil service) - body that implements the law.
The judiciary (Courts; Monarch, all legally qualified judges and magistrates) - body that resolves disputes about the law.
4
Q
Why is the Monarch part of the legislature?
A
Because they must always give royal assent before a bill that has passed through Parliament becomes an Act of Parliament (by Convention).
5
Q
What is the difference between a Federal and Unitary Constitution?
A
A Federal Constitution has a division of power existing between the Central and Regional Government, whereas a Unitary Constitution has a single sovereign legislative body with power concentrated at its centre.
N.B. As a Unitary Constitution, Westminster Parliament has the competence to legislate for the whole of the UK at all levels.
6
Q
What are the 3 core principles of the UK’s Constitution?
A
Rule of Law
Separation of Powers - ‘checks and balances’ concept provides powers to the other branches to ensure that no one branch may exert an excessive amount of power.
Parliamentary Supremacy - legislation enacted by Parliament takes precedence over common law.
7
Q
What are the key elements of the Rule of Law?
A
Laws should be clear - citizen to be punished only for a clearly defined breach of the law.
Legal certainty - laws should not operate retrospectively and a citizen should not be punished for an act that was not a crime at the time they carried out that act.
Equality before the law (between citizens and public officials)
The government is prevented from exercising arbitrary power (PS)
The government can be held accountable for its actions (JR)
Independence of the judiciary is maintained, preserving the separation of powers.
8
Q
What are the 4 principal sources of the UK Constitution?
A
Acts of Parliament (N.B. Each Act may be repealed by an ordinary Act of Parliament, just as with any other Statute).
Case law - common law, JR, statutory interpretation
The royal prerogative - what remains of the absolute powers that were previously exercised by the Monarch and have not been removed by Parliament (mainly covers Foreign and Domestic Affairs areas).
Constitutional Conventions - non-legal rules of behaviour that are considered to be binding but are not legally enforceable by any judicial body.
9
Q
What key principles of our constitution are derived from the common law?
A
Residual freedom - citizens are free to do or say whatever they wish unless the Law (primarily expressed through Acts of Parliament) state that such an action or statement is prohibited.
Exercises of power by the State (e.g. police officers) must have legal authority to be lawful.
Legal disputes should be resolved by the judiciary.
10
Q
Who is responsible for the exercise of prerogative powers?
A
The Monarch is legally responsible but most of these powers are by convention exercised by the PM and other government ministers on the Monarch’s behalf.
11
Q
Can Acts of Parliament remove prerogative powers?
A
Yes - and prerogative powers cannot be used in a way that contradicts a statutory power.
12
Q
What happens if Parliament introduce a Bill that breaches a recognised convention?
A
The courts will recognise this but will not be stopped from applying the legislation.
Breaches of conventions lead to political, not legal sanctions.
13
Q
List some examples of Constitutional Conventions?
A
The Monarch plays no active role in matters of government, and legal powers that are vested in the Monarch are exercised on their behalf by the elected Government of the day.
The Monarch will appoint as PM the person who is best able to command the confidence of the HOC.
Individual ministerial responsibility
Collective cabinet responsibility
Ministers and Members of Parliament do not criticise individual members of the Judiciary in public.
Members of the judiciary do not play an active part in political life.
The Monarch will not refuse Royal Assent to a bill which has been passed by HOC and HOL.
The Salisbury Convention.
The Sewel Convention.
14
Q
Define the concept of individual ministerial responsibility?
A
Government ministers are individually accountable to Parliament for the running of their department’s administration and their personal conduct, and must resign if a serious conflict of interest or failure arises.
15
Q
Define the concept of collective cabinet responsibility?
A
The Cabinet is collectively responsible to Parliament for the actions of Government as a whole, and the Government must retain the confidence of the HOC. A government that is defeated on a vote of ‘confidence’ in the HOC must resign.
The Cabinet must be united in public of support of government policy, and so a cabinet minister must resign if he/she wishes to speak out in public against such policy.
Cabinet discussions must remain secret.
16
Q
What is the Salisbury Convention?
A
The unelected HOL will not reject a bill giving effect to a major part of the democratically elected government’s manifesto.
Instead, HOL to use its expertise to make small amends to the legislation it disagrees with.
17
Q
What is the Sewel Convention?
A
The UK Parliament will normally only legislate on a matter that has been devolved to the Scottish Parliament if the Scottish Parliament has given its consent.
N.B. This encourages the UK Parliament to seek consent for legislation on devolved matters but does not bind them or affect their PS ability to make laws for Scotland.
18
Q
Why have constitutional conventions developed?
A
To limit the wide legal powers of the Monarch without the need for major constitutional upheaval.
To ensure that the Government is accountable to Parliament for its actions.
To maintain the separation of powers between the different branches of State.
19
Q
What happens if Parliament passes an Act that breaches a Convention?
A
The Act might be unconstitutional, and the courts will acknowledge the existence of conventions, but the courts will not refuse to apply it for that reason.
20
Q
What is the sub-judice rule?
A
A formal law of Parliament designed to prevent members of the executive and legislature from commenting on ongoing court procedures.
21
Q
List the main functions of Parliament?
A
Scrutinising the work of Government
Passing legislation
Debating the key issues of the day.
Approving funding for Government to carry out statutory duties
Providing the personnel for Government (from HOC and HOL).
22
Q
Describe the relationship between the HOC and HOL?
A
HOC is more important as the members are directly elected by the people at a general election, so HOC has more democratic legitimacy than the currently unelected HOL.
23
Q
Explain the stages of the legislative process?
A
First reading (purely formal) - title of the bill is read out and then printed and published.
Second reading - main debate in HOC on general principles of the Bill.
Committee stage - 16-50 appointed public bill Committee members examine the bill in detail and make amends to clauses if needed.
Third reading - Consideration of the bill as amended, brief debate and only verbal amends can be made. Final chance to vote on the bill; often MPs do not.
HOL proceedings - can be sent back and forth to HOC if amendments necessary. In practice, if the HOC disagrees with HOL amendments and restores original wording, Lords will usually accept it.
Royal Assent - once received, bill becomes Law as Act of Parliament.
N.B. The Act may suspend its ‘commencement’ until a future date, determined by delegated legislation made under the Act.
24
Q
What happens if the HOL rejects a bill that has passed the HOC?
A
The bill may still eventually become law as a consequence of the provisions of the 1911 and 1949 Parliament Acts.
25
What are recall petitions?
Process whereby an MP can be removed from their seat and by-election to follow. May be opened if;
- MP convicted of an offence and receives a custodial sentence.
- MP suspended from the HOC for at least 10 sitting days.
- MP convicted of providing false or misleading information for allowances claims.
Once triggered, an MP will be removed from their seat and a by-election called if at least 10% registered voters sign the petition within 6 weeks.
26
What is the difference between private and public bills?
Private - relate to matters of individual, corporate or local interest (affecting particular persons or a locality).
Public - Government bills, private members' bills.
27
Expand on the 2 forms of public bill?
1) Government bills - usually submitted to Parliament as part of the Government's legislative programme; usually listed in the King's Speech at the start of a parliamentary session.
2) Private members' bills - introduced by MPs or Lords who are not government ministers.
28
What is the requirement for an early Parliamentary general election?
A vote of no-confidence or a 2/3 vote by MP's in favour of an early election or an Act of Parliament to supercede this.
29
What are the key elements of Dicey's description of Parliamentary Sovereignty?
Parliament is the key law-making body and can enact or repeal laws on any subject.
No Parliament may be bound by a predecessor or bind a successor - a particular Act of Parliament cannot be entrenched, or be given a 'higher' status than any other Act. Given effect through the doctrines of express and implied repeal.
No other person or body may question the validity of an Act of Parliament or declare it unlawful.
30
What is the Enrolled Act rule?
Once an Act of Parliament has been entered onto the Parliamentary roll, the courts will not question the acts validity or declare it void.
31
List some examples of the unlimited legislative competence of Parliament?
- Statute may override international law.
- Statute may override constitutional conventions.
- Statute may alter the constitution (N.B. has been done with Acts of Union 1706-07, HRA 1998 etc).
- Statute may operate retrospectively.
- Statute may abolish or curtail aspects of the royal prerogative.
32
What happens in the event of inconsistency between an earlier and later Act of Parliament?
Later Act will revoke the earlier Act where the inconsistency is.
33
What is the effect of a declaration of incompatibility on legislation?
Does not invalidate but puts pressure on the Government to amend or repeal the incompatible provisions.
34
List the Domestic limitations on Parliamentary Supremacy?
1) The impact of devolution - Parliament has granted legislative powers to Scotland, Wales and N.Ireland through Devolution laws, but the UK retains control over 'reserved matters' e.g. defence.
2) The concept of constitutional statutes that cannot be repealed.
3) The 'manner and form' debate.
4) The Rule of Law - in extreme circumstances may trump PS e.g. if Parliament enacted legislation to abolish JR or the role of the courts, Parliament may be willing to strike down such legislation.
5) Henry VIII powers.
6) Act of Union - UK was formed by these Acts which are viewed by some as a partial 'written constitution' constraining Parliament's power to legislate contrary to these Acts.
35
What is the test for constitutional statutes that cannot be repealed?
a) The statute must condition the legal relationship between citizen and state in some general, overarching manner; or
b) The statute must change the scope of fundamental constitutional rights.
36
What is the 'manner and form' debate?
Can a Parliament bind its successors as to the procedure to be adopted when repealing legislation enacted by that earlier Parliament?
Arguments in favour;
- Parliament Acts 1911 and 1949; show Parliament can change how laws are made (e.g. bypassing the HOL).
- Precedent for procedural change: if Parliament can make legislation easier to pass, it can also make it harder e.g. requiring supermajorities or referendums.
- Entrenchment possibility: Parliament can require future repeal only under stricter conditions.
Arguments against;
- UK Parliament is supreme; unlike NSW, UK Parliament was not created by another authority, so cannot be bound.
- No Parliament can bind its successors.
- Referendum requirements in recent devolution acts (Scotland, Wales, NI) may not be upheld by courts.
37
List the 2 European limitations on Parliamentary Supremacy?
1) Arise from UK's membership of the EU.
2) Incorporation of the ECHR into UK Law.
38
Explain the European Limitation 1) Arising from UK's membership of the EU?
If conflicts arose, EU law would prevail. This constrained Parliament as laws contradicting EU obligations could not be passed.
Direct and indirect effect - EU laws could take immediate effect in MS, even if not specifically incorporated domestically.
Retained EU law post-Brexit continues to influence UK law.
39
Explain the European limitation 2) Incorporation of the ECHR into UK Law?
UK courts to interpret laws in line with ECHR rights as far as possible (s3). This means judges have stretched to give statutes meanings that Parliament may not have originally intended.
HRA does not eliminate PS, but constrains it by embedding ECHR principles into the legislative process.
However, declarations of incompatibility under s4 (ministers must state whether a bill is compatible with ECHR rights before the bill's second reading) show an evolving stance that domestic interpretations of rights under the HRA have begun to diverge from the ECHR.
40
What are the main Parliamentary privileges?
Freedom of speech - MP's are immune from civil and criminal proceedings regarding anything they say in Parliamentary proceedings. This is based on Article 9 of the Bill of Rights (freedom of speech), and is widely interpreted by courts.
The right to control its own composition and procedures ('exclusive cognisance'). Courts will not question the validity of an Act on the basis that correct procedures were not followed.
41
What is the key difference between the UK and a federal state?
The UK Parliament has delegated certain powers to the devolved legislatures and legally could revoke those powers as UK Parliament has not given up those powers.
42
What has devolution in Scotland allowed the Scottish Parliament to be able to do?
Pass primary legislation; once the Scottish Parliament has passed a bill and it has received Royal Assent, it is known as an Act of the Scottish Parliament.
43
Explain the 'reserved powers' model?
The Scotland Act 1998 devolved all matters to the Scottish Parliament other than reserved matters, meaning the Scottish Parliament has the power to legislate on all matters that are not expressly reserved to Westminster (e.g. foreign policy, defence, responsibility for the Constitution).
This means the Scottish Parliament has the power to legislate on a wide range of matters, including health, education, much of civil and criminal law, and local government.
N.B. The model applies in Wales and N.Ireland but slightly different reserved powers.
44
What is a legislative consent motion?
Motion by which the Scottish Parliament consents to the UK Parliament legislating on devolved matters, often in cases involving technical or overlapping issues.
N.B. Avoids the need for 2 pieces of legislation, an Act of the UK Parliament and an Act of the Scottish Parliament.
45
How does the SC handle acts of devolved legislatures that exceed legislative competence?
It may invalidate such Acts that exceed legislative competence, cover reserved matters or violate the ECHR.
46
Does the Scottish Parliament have the power to amend or repeal acts of the UK Parliament?
Yes; provided the subject-matter falls within its legislative competence.
Any such amendment would only be effective in relation to Scotland.
47
Where a provision in an Act of the Scottish Parliament could be read as being outside its legislative competence, how is such a provision to be read?
As narrowly as is required for it to be within competence, if such a reading is possible.
48
What is required before a bill is introduced to the Welsh Senedd?
The minister introducing the bill and the Presiding Officer must state whether the bill is within the Senedd's competence.
N.B. Courts are the final arbiter of whether legislation passed by the devolved legislatures are within their competence.
49
Explain the 'reserved powers' model in Wales?
Senedd has the power to pass legislation on all matters that are not explicitly reserved to the Westminster Parliament, such as defence, foreign affairs and immigration.
N.B. Criminal justice is a reserved matter in Wales, as is taxation.
50
Where any provision of an Act of the Senedd could be read in such a way as to be outside or inside the Senedd's legislative competence, how should it be read?
Interpreted as being inside its competence.
51
What is the procedure of passing government bills in Wales?
The Welsh Government sends the bill and related documents to the Senedd, and the bill then undergoes scrutiny.
1) Consideration and agreement of the bill's general principles.
2) Detailed consideration of the bill and any changes by a committee.
3) Detailed consideration of the bill and any changes by the Senedd.
Report stage; an optional stage to make amendments (if required).
4) A vote by the Senedd to pass the bill's final text. Once the bill is passed, it is sent for Royal Assent after about 4 weeks (this period gives a window for law officers to refer the question of whether the bill is within the Senedd's legislative competence to the SC).
52
Can Welsh ministers enact secondary legislation?
Yes; where authorised to do so by a parent act e.g. Act of Westminster Parliament or Act of the Senedd Cymru.
53
What are the 3 ways in which the question whether legislation passed by a devolved legislature is outside its legislative competence can come before the SC?
1) Through a reference by a devolved or UK law officer to the SC. The law officers have the power to refer a bill that the devolved legislature has passed but has not yet received Royal Assent to the SC for a ruling on whether the bill is within the legislature's competence.
2) Through an appeal from certain higher courts in England and Wales, Scotland, and N.Ireland.
3) Through a reference from certain appellate courts.
54
Who has the power to refer a bill to the SC?
Both the UK Law Officers (the Attorney General) and the chief law officers of each of the devolved governments (e.g. Lord Advocate in Scotland).
55
How does the 1999 memorandum of understanding help co-ordinate the relationship between the UK Government and the devolved administrations?
It created the Joint Ministerial Committee (JMC), a set of committees that consists of ministers from the UK and devolved governments; aimed to provide central co-ordination of the overall RS and to;
- Consider non-devolved matters that affect devolved responsibilities.
- Consider devolved matters if beneficial to discuss their respective treatment in the different parts of the UK.
- Keep the arrangements for liaison between the governments under review; and
- Consider disputes between the governments.
56
What 2 active sub-committees does the JMC have?
1) JMC Europe
2) JMC EU Negotiations (JMC - EN).
57
Why is it important to observe the rule of law?
To ensure that;
-- The Government is prevented from exercising arbitrary power.
-- The Government can be held to account for its actions (through judicial review).
-- The law is set out clearly for all citizens and is made properly following a set procedure.
-- The law does not operate retrospectively.
-- There is equality before the law for all citizens.
-- There is equal access to the law and the Government or state has no special exemptions.
-- The independence of the judiciary is maintained, thereby preserving the separation of powers.
58
What does the separation of powers doctrine suggest?
That as each branch of state has a different role to play within the constitution, there should be no overlap between the branches, either in terms of their functions or personnel.
If such an overlap were to exist, this would represent an unhealthy concentration of power which could lead to arbitrary or oppressive government.
Checks and balances to exist between the 3 branches to prevent excessive power being exercised by 1.
59
Are the UK courts able to strike down statutes?
No.
60
Are members of the executive also able to be members of the legislature?
No; House of Commons Disqualification Act supports the separation of powers between the executive and legislature to some extent.
-- Section 1 disqualifies certain members of the executive (civil servants, members of the armed forces and police) from being MPs.
-- Section 2 limits the number of government ministers who may sit in the House of Commons to 95.
N.B. However, there is clearly some overlap despite this as government ministers can also be MPs.
61
What does it mean to characterise the UK system of government as an 'elective dictatorship'?
Although the people elect the Government whenever a general election takes place, once that Government has been elected it can generally act as it pleases and get Parliament to enact its legislative programme in full.
N.B. The only limitation on the Government is that it must submit itself for re-election at the next general election.
62
Give some reasons why the UK government has been said to operate in this way?
Our current 'first past the post' electoral system means that normally MPs in the HOC will be members of the political party that forms the Government.
The Government therefore has an in-built majority in the HOC, particularly given that most members of the Government (including PM and other cabinet ministers) are also MPs.
The Government has significant control over the parliamentary timetable, with most of Parliament's time devoted to the Government's legislative programme.
Parliament effectively (through enacting legislation) is legitimising legislative proposals put forward by the Government.
The constitutional convention that the Government will resign if defeated in the HOC on a confidence vote or a major part of its legislative programme means that governments are able to persuade their backbench MPs to support government legislation, even if those MPs are reluctant to do so.
Huge pressure is placed on MPs from the governing party to support bills introduced by the Government through the Government whips.
63
Give some examples of 'checks and balances' that enable Parliament to fulfill its role in scrutinising the Government and holding it to account for its actions?
Questions - MPs can put forward questions/written questions to Ministers and the PM takes 30 mins to answer each week.
Debates - 'standing orders' of the HOC provide for emergency debates on matters requiring emergency consideration.
General Committees - all government bills are referred to a public bill committee of MPs after the main principles of the bill have been defeated. The purpose of them is to review the detailed clauses of the bill and make such amendments as is necessary.
Select Committees - appointed for the life of a Parliament (1 in each House of Parliament) to examine the 'expenditure, administration and policy' of the main government departments. They can report to the HOC and it is for the House to consider any necessary action.
MP's may reject government bills (rare but may happen).
64
How do the constitutional conventions of individual ministerial responsibility and collective cabinet responsibility play a role in holding the Government to account for their actions?
Under convention of individual ministerial responsibility, there must be no conflict of interest between a minister's public duties and his/her private interests or they should resign.
Under convention of collective cabinet responsibility, ministers must resign if they wish to speak out in public against government policy.
65
In what areas of government activity have Parliament historically been unable to exercise effective scrutiny?
Predominantly powers that the Government exercises under the royal prerogative such as matters of national security, defence of the realm and the deployment of armed forces.
N.B. Some indication that Parliament is taking on a greater role in these areas (E.g. in 2003, the Government obtained parliamentary approval before sending troops into Iraq).
Appears to be a new convention that before Government commits troops to military operations, the HOC should have an opportunity to debate the issue, but the exact scope of the new convention is unclear.
66
Where is the importance of judicial independence recognised?
In the Constitutional Reform Act 2005, which provides that the Government is under a duty to uphold the independence of the judiciary and that individual ministers should not seek to influence particular decisions through any special access to the judiciary.
The act also aimed to enhance the separation of powers between the executive and judiciary but N.B. some members of the executive do continue to perform quasi-judicial functions in some areas.
67
List some ways in the UK that judicial independence is secured from the executive?
Appointment - judicial appointments are now dealt with by the Judicial Appointments Commission, which is politically impartial and free from executive control.
Tenure - judges cannot be dismissed for merely giving a judgment that the government disagrees with.
Salary - judicial salaries are determined by an independent body and are paid from the Consolidated Fund (insulated from executive and parliamentary control).
Immunity from civil action - judges, particularly in the higher courts, have wide-ranging immunity from claims in tort in respect of their judicial actions. This means an unsuccessful litigation cannot sue a judge from making an error when carrying out their duties.
Constitutional conventions - by convention, members of the executive do not criticise judicial decisions, and members of the judiciary do not engage in party political activity.
The 'sub-judice' rule - Parliament (and therefore government ministers) refrain from discussing matters currently being heard or waiting to be heard by the courts.
68
What has the Constitutional Reform Act 2005 done to reduce the overlap between the executive and judicial branches of state?
It has changed the Lord Chancellor's role; previously was a member of both the executive and judiciary; now transferred to Lord Chief Justice. Role involves responsibility for the training, guidance and deployment of judges, and representing the views of the judiciary to Parliament, the Lord Chancellor and other ministers.
Creation of the Judicial Appointments Commission; independent body to ensure that the appointment of judges in England and Wales occurs solely on merit and is not influenced by political considerations. Prior to 2005, the appointment of the judiciary was solely in the hands of the executive and done on the basis of 'secret soundings'.
69
From what 2 sources does the executive derive its power from?
Statute and royal prerogative.
N.B. If Parliament has granted statutory powers to the executive (e.g. giving a particular power to a government minister) the courts can ensure that those powers are exercised in accordance with the purpose of the statute and are not exceeded or abused (JR).
N.B. Through use of JR mechanism, the courts can determine the extent of the royal prerogative and review the exercise of prerogative powers to ensure that they have been exercised in an appropriate manner.
-- Courts have established through case law that new prerogative powers cannot be created or the scope of existing powers extended.
70
How does the courts judicial review function preserve the separation of powers between the executive and judiciary?
When reviewing the actions of the executive, the courts only consider the legality of a decision/action, not its merits as that would usurp the role of the executive.
71
Are there any areas where the court refuses to review the exercise of prerogative powers?
Highly political areas where the executive is deemed to have more expertise than judiciary e.g. defence, national security, making international treaties, where the accountability of the executive is better secured through the electorate at a general election than through the courts.
However, this does leave executive powers beyond both scrutiny of the legislature and judiciary. Some of the areas that the courts deem to be non-justiciable (particularly defence and national security matters) are the same areas where Parliament's ability to hold the executive to account is limited.
72
List some of the statutory and other methods in place to ensure some degree of separation between the legislature and judiciary?
House of Commons Disqualification Act - Under s1, holders of judicial office are disqualified from membership in the HOC.
Impact of convention - constitutional convention that Members of Parliament will not make a criticism of a particular judge and a further convention that members of the judiciary will not become involved in political activities.
The sub-judice rule - Parliament will refrain from discussing details of cases before the courts or waiting to come before the courts.
Bill of Rights 1689 - guaranteed freedom of speech in Parliament through parliamentary privilege.
73
How has the Constitutional Reform Act 2005 reduced the overlap between the legislature and judiciary?
Creation of the SC with its own building away from Parliament.
-- Prior to 2005, Law Lords (Appellate Committee of HOL) were part of Parliament and could vote/debate and the Lord Chancellor was Head of judiciary, Law Lord, speaker of HOL etc.
-- Now, SC has replaced the Appellate Committee of HOL, Law Lords became first SC justices (no longer sat in HOL), Lord Chancellor is no longer speaker of HOL (Lord Speaker elected by peers).
74
Are the judiciary able to prevent Parliament from legislating in any given area?
No; cannot declare an Act of Parliament to be unconstitutional or strike down an Act. Also, the UK has no written constitution to provide a 'higher authority' against which all other legislation can be judged.
75
What is to happen where legislation violates the rule of law?
A declaration of incompatibility to be issued by the High Court but the legislation will remain in force.
76
What are the key ECHR provisions relating to public order?
Article 10 - Freedom of expression.
Article 11 - Freedom of assembly and association.
77
When may the State restrict freedom of assembly?
If the restrictions are;
-- Prescribed by law and necessary in a democratic society.
-- In interests of national security.
-- For the prevention of crime and disorder.
-- For the protection of health and morals.
-- For the protection of rights and freedoms of others.
78
What is the basic approach of English law regarding processions and meetings?
Prima facie lawful unless they amount to crimes or torts.
N.B. In light of this, the police need powers under POA 1986 to deal with them.
79
Define what is meant by 'preventative measures' that the police have from POA 1986?
The power to impose conditions or on barn public processions and public meetings.
80
What advance notice is required for any person organising a 'public procession'?
At least 6 clear days notice to the police of the date, time and route of the proposed procession.
The organisers must deliver the notice to a police station in the police area where the procession will start, to enable the police to plan and give directions to avoid public disorder or other disruption.
81
Define what is meant by a 'public procession'?
A procession in a public place for any of the following purposes;
-- To demonstrate support for or opposition to the views or actions of any person or body of persons.
-- To publicise a cause or campaign.
-- To mark or commemorate an event.
82
What qualifications and exemptions are there to the requirement to give advance notice for processions?
-- Funerals.
-- Customary/commonly held processions in same place (as police should be aware of such e.g. Diwali).
-- Occasions where sudden notice makes it impractical to give notice (e.g. sudden factory closure).
83
What offences can be committed relating to advance notice of processions under POA?
1) Organisers guilty if they do not give the required notice.
-- Defence if the organiser did not know, and did not have any reason to suspect, that the notice requirement had not been complied with.
2) Guilty if the processions differ from what the notice specified.
-- Defence if the departure from the details in the notice arose from circumstances beyond the organisers' control or from something done with the agreement of the police or by their direction.
N.B. In both cases, the burden of proof is on the defendant on the balance of probabilities to prove that the defence exists.
N.B. Conviction will result in a fine not exceeding £1000.
84
Does failure to provide notice render the protest/procession unlawful?
No; only the organisers commit an offence. Participation in such a procession is not a criminal offence.
85
When can the police impose conditions upon public processions?
Where a senior police officer reasonably believes that;
-- The march will result in serious public disorder, serious damage to property or serious disruption to the life of the community, OR
-- The purpose of the organisers is to intimidate others with a view to compelling them not to do something that they have a right to do, or to do something that they have a right to do.
N.B. 'intimidation' defined as putting people in fear or discomfort.
N.B. Police can also impose conditions on protests to include where noise may cause a significant impact on those in the vicinity or serious disruption to the activities of an organisation (enables police to intervene in wider range of circumstances e.g. Just Stop Oil).
86
What conditions may the police officer impose?
Those that appear to be necessary to prevent such disorder, damage, disruption or intimidation.
Includes conditions prescribing the route or prohibiting the march from entering a particular public place.
87
How does the identity of the police officer with the power to impose conditions depend on the circumstance?
For conditions imposed during the procession, it is the most senior police officer present at the scene and they may be given verbally.
For conditions imposed before the procession, it is the chief officer of police and must be given in writing, accompanied with sufficient reasons so the demonstrators can understand why the conditions have been imposed, and a court can assess whether the belief that the procession may result in the consequences above is reasonable.
88
List the offences and possible sanctions under POA 1986?
1) Organising a public procession and failing to comply with a condition imposed where the person concerned knows or ought to know that the condition has been imposed.
-- Sanction = imprisonment not exceeding 51 weeks or a fine not exceeding £2500.
2) Taking part in a public procession and failing to comply with a condition imposed where the person concerned knows or ought to know that the condition has been imposed.
-- Sanction = fine not exceeding £1000.
3) Inciting a participant in a public procession to commit an offence.
-- Sanction = imprisonment not exceeding 51 weeks or a fine not exceeding £2500.
89
What power does a chief officer of police have to prohibit processions?
Can apply for a prohibition order in respect of public processions if they reasonably believe, because of particular circumstances existing in any locality, that the powers they have are insufficient to prevent a risk of serious public disorder.
Chief officer of police to apply to the local authority, who can make an order with the Home Secretary's consent.
N.B Orders slightly different in London; can be for any period not exceeding 3 months and may ban all processions/processions of a particular class e.g. political marches. There is however, no power to ban a specific individual procession.
90
Do local authorities have any power of their own to seek a ban?
No; initiative must come from the police.
91
Can bans be challenged by way of judicial review?
Yes.
92
What is the general rule regarding the holding of public meetings?
No requirement to obtain permission but powers to control POA have been added in a response to concerns that static protest could cause public order problems.
93
What conditions can be imposed on public assemblies?
Senior police officer can impose conditions on any public assembly if they reasonably believe that it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or that the purpose of the organisers is to intimidation of others.
(SAME CRITERIA AS IMPOSING CONDITIONS ON PROCESSIONS).
N.B. No requirement for the organisers of a public assembly to give advance notice.
N.B. In both cases, any conditions imposed in advance must be in writing and give adequate reasons, whilst conditions imposed during a procession/assembly may be given verbally.
94
Define what is meant by a public assembly?
An assembly comprising 2 or more persons in a public place that is wholly or partly open to the air.
N.B. Wide definition.
95
Can public assemblies be banned?
No; but police may be able to order participants to disperse. The chief officer of police on the scene may impose conditions limiting the duration of the meeting, so if necessary the police could impose a condition limiting the maximum duration to 5 minutes from giving the notice of the condition.
N.B. However, any condition imposing a maximum duration must be proportionate.
96
Can the police impose conditions on one-person protests?
Yes; where the noise created may cause a significant impact on those in the vicinity or serious disruption to the activities of an organisation.
97
What defences are available to offences for public assemblies?
Organisers and participants have a defence if they can show that their failure to comply with the conditions was due to circumstances beyond their control; burden of proof on defendant to establish the defence.
Prove the conditions were invalid; where the police impose conditions on a very small gathering, it may be hard to them to argue that those conditions were proportionate.
98
Define a trespassory assembly?
Static gathering involving more than 20 people in the open air on land to which the public has no right, or a limited right of access.
99
How is the criteria (as well as definition of) to ban a trespassory assembly narrower than those for imposing conditions?
The chief officer of police must reasonably believe that it is intended to hold a trespassory assembly;
-- Without the permission of the occupier or outside the terms of any permission or right of access, and
-- Which may result in serious disruption to the life of the community or significant damage to the land, building or monument which is of historical, archaeological or scientific importance.
The chief officer can then apply to the local authority for an order prohibiting for a specified period the holding of all trespassory assemblies in the district or part of it.
-- Must not last for more than 4 days and must not apply to an area greater than a 5 mile radius from a specified centre.
-- Home Secretary's consent is needed.
100
Does a notice prohibiting trespassory assemblies constitute an absolute ban on all assemblies on that land?
No; only prohibits assemblies to the extent those taking part in it are trespassing on the land.
E.g. an assembly on a highway is only trespassory if the participants go outside their right of access.
101
What common law powers do the police have to prevent a breach of the peace?
Can arrest or detain individuals to prevent an imminent breach of the peace.
Can take measures of short arrest e.g. dispersing gatherings, requiring individuals to leave an area.
Entry without a warrant is permitted to stop a breach.
Action must be proportionate and respect ECHR.
102
Define judicial review?
The mechanism by which the courts ensure that public bodies act within the powers that they have been granted and do not exceed or abuse those powers.
A court judicially reviewing the actions of a public body is not concerned with the merits of that body's decision but only that public bodies make decisions in the right way.
Judicial review claims involve a challenge to a public body on public law grounds.
N.B. Governed by primary legislation (s31 Senior Courts Act 1981) and by rules of court contained in Civil Procedure Rules; dealt with by the Administrative Court (specialist court within the High Court).
103
What is the link between judicial review and the Rule of Law?
Can be seen as an example of the judiciary fulfilling its role, ensuring that justice is done and that the law applies to members of the executive just as much as it does to the individual.
It prevents the exercise of power that does not have a lawful basis.
104
What is the link between judicial review and the separation of powers?
In the judicial review process, the legislative branch passes policy-implementing powers to the executive branch, whilst the judicial branch ensures that the executive branch does not abuse those powers but stays within the parameters of discretion imposed by the legislative branch.
- shows the separation of powers working smoothly by ensuring that the executive does no more than the legislature has allowed it to do.
Also, in judicially reviewing actions or decisions of the executive, the courts are concerned only that such steps have been exercised in the correct way and using the correct procedure. The courts are not concerned with the merits of any decision (role of executive).
105
What is the link between judicial review and parliamentary sovereignty?
The courts question secondary legislation but not normally question primary legislation which would breach parliamentary sovereignty.
106
List the 3 grounds of domestic judicial review?
1) Illegality (substantive ground of review).
2) Irrationality (substantive ground of review).
3) Procedural impropriety (focuses on the procedure followed in arriving at the decision under review).
107
List the 2 further 'European' grounds of review?
1) Breach of the ECHR.
2) Breach of retained EU law.
108
How might illegality occur?
An action is illegal or ultra vires if it is beyond the powers of the public body in question either because the powers claimed do not exist, or because they are exceeded or absurd in some way.
109
What are the different heads of illegality?
Acting without legal authority (public bodies cannot act without it).
The rule against delegation.
- General rule = once decision-making powers are given by Parliament, they cannot then be further delegated or 'sub-delegated'.
- Exceptions;
--- 'Carltona principle' - under convention of individual ministerial responsibility, government ministers are ultimately responsible to Parliament for their departments, so there is an expectation that they act through their civil servants in taking even major decisions even where sub-delegating decision-making powers to them.
--- Local Government Act 1972 s101 - local authorities may delegate decision-making powers to committees, sub-committees or to individual officers, provided they make a formal resolution to do so.
Policy;
- A decision-maker is allowed to formulate a policy on which to base decisions for the purposes of administrative expediency, but it must properly reflect the statutory powers given to the decision-maker.
'Fettering of discretion'.
- General rule = if Parliament provides a public body with a discretionary power, the courts will not permit that body to restrict or 'fetter' such a discretion. May occur in 2 ways;
--- Acting under the dictation of another.
--- Applying a general policy as to exercise discretion in too strict a manner (anyone who has a statutory discretion must not shut his ears to an application and must be always willing to listen to anyone with something new to say).
Using powers for an improper or unauthorised purpose (public bodies will be acting illegally if so).
Dual purposes.
- In situations where a public authority arrives at a decision based on more than 1 consideration, 1 which is relevant to the purpose of the power it is exercising, and the other which is irrelevant, 2 tests;
--- Where there are dual purposes behind a decision, provided the permitted/authorised purpose is the 'primary purpose', then the decision is not ultra vires and should stand OR
--- Was the authority pursuing an unauthorised purpose which 'materially influenced' the making of its decision? If so, decision is unlawful due to taking into account an irrelevant consideration.
Taking account of irrelevant considerations or failing to take account of relevant considerations.
- A public authority must both disregard irrelevant considerations and take into account relevant considerations when exercising its powers.
Errors of law/errors of fact.
- Errors of law that affect a decision will always be amenable to judicial review.
- Courts are more reluctant to allow judicial review for errors of fact than errors of law, but some errors of fact are amenable to judicial review;
--- 'jurisdictional' errors of fact; decisions on alleged errors of fact that go to the root of a public authority's capacity to act.
110
Explain the 'irrationality' ground of judicial review?
Successful challenges under this ground of review require proof of a high degree of unreasonableness.
Test began with the 'Wednesbury Principle' - whether, having regard to relevant considerations only, the decision-maker came to a conclusion so unreasonable that no reasonable authority could ever have come to it.
Developments post-Wednesbury (1984 test) - to be irrational, a decision needed to be so outrageous in its defiance of logic, or of accepted moral standards, that no sensible person could have arrived at it.
Hard to establish (many public authorities still fail the test) but not impossible.
- N.B. Many decisions under this ground are also justified on the alternative ground of procedural unfairness.
111
What are the procedural grounds of judicial review concerned with?
The steps leading to and the circumstances surrounding the tribunal's decision, rather than the decision itself.
N.B. Procedures should be open to challenge because the claimant needs to know that their case was handled fairly.
112
How have the rules of natural justice developed for procedural fairness?
Via the common law. Created by the judiciary, an unelected body. The legal doctrine of parliamentary sovereignty requires that it should be the legislature that makes law but the rules have become an accepted part of administrative law.
113
What are the 2 rules of natural justice?
1) The rule against bias (which provides that a decision-maker should have no personal interest in the outcome of his decision).
2) The right to a fair hearing.
114
Explain the rule against bias?
- Application depends on whether the interest the decision-maker has in the outcome of the decision is 'direct' or 'indirect'.
--- Where the interest is direct (cases of direct financial gain, proprietary interest in the case and cases of non-pecuniary interest where the decision-maker is involved in promoting the same cause as a party to the case), the court is usually obliged to 'quash' the decision as bias on the part of the decision-maker is presumed.
--- Where the interest is indirect (e.g. relative of the decision-maker who has the interest), reviewing court cannot automatically quash the decision and should investigate the relationship between the indirect interest and the decision.
--- Apply test; 'would a fair-minded and impartial observer conclude that there had been a real possibility of bias?'
N.B. Court does not ask whether the decision was in fact affected by the bias of the decision-maker, but how the decision would appear to the observer.
115
Explain the right to a fair hearing?
- Duty on decision-makers to act in good faith and listen fairly to both sides.
- The right is flexible and depends on the context of each individual case.
3 categories of claimant, what precisely is required to achieve 'fairness' depends partly on the nature of their interest, with a key determining factor being how much the claimant had to lose (i.e. the nature of the claimant's interest);
1. Forfeiture cases;
-- Cases where the claimant had the most to lose e.g. livelihood or job.
-- Such claimants are entitled to expect a lot more from their hearing for it to be considered to amount to a fair hearing (natural justice requires claimants to know the case against them and have the right to reply at each stage of the decision-making process; might include a full oral hearing).
2. Legitimate expectation cases;
-- Cases where it was legitimate for the claimant to expect that an established practice would continue, when seeking the renewal or confirmation of some licence, membership or office that they have held previously.
-- This category also includes those seeking renewal of some form of payment e.g. state benefits.
-- Nature of a fair hearing here depends very much on the expectation that the decision-maker created.
N.B. The express promise, or existence of a regular working practice, might give rise to 2 different types of legitimate expectation.
- procedural legitimate expectation in which a decision-maker has failed to follow a normal procedure and
- substantive legitimate expectation where the decision-maker has led someone to believe that he or she will receive a benefit.
3 possible outcomes;
1) Court may decide that the public authority is only required to bear in mind its previous policy or other representation.
-- It must give this the weight it thinks right, but no more, before deciding whether to change course.
-- Here, the court is confined to reviewing the decision on Wednesbury (irrationality grounds; only in exceptional cases will irrationality be found).
2) Court may decide that the promise or practice induces a legitimate expectation of e.g. being consulted before a particular decision is taken (procedural legitimate expectation).
3) Court may decide that the promise or practice has induced a legitimate expectation of a substantive benefit and that to frustrate the expectation is so unfair that it would amount to an abuse of power.
-- In such cases, the court have the task of weighing the requirements of fairness to the individual against any overriding public interest relied on by the public body for its change of policy.
3. Application cases;
-- Cases where the claimant is the first-time applicant who merely seeks a licence, membership or office that they have not held previously.
-- Such claimants are entitled to expect a lot less from their hearing for it to be considered to amount to a fair hearing (natural justice only requires that defendant has acted honestly and without bias).
116
Explain the danger that exists in requiring a decision-maker to honour a substantive legitimate expectation?
The courts are usurping the role of the decision-maker; however it has been stressed that a substantive legitimate expectation would only arise where the public body concerned had made a specific undertaking, directed at a particular individual or group, that the relevant policy would be continued.
Such undertakings are likely to be directed at a small class of people.
N.B. Public bodies will not normally be legally bound to maintain a policy that they have reasonably decided to change.
117
Does the right to a fair hearing always apply?
No; may not apply in certain situations e.g. if a decision that has been made is merely 'preliminary'.
118
What does the right to a fair hearing include?
1. As above, the right to know the case against you is a standard requirement but the law has not yet accepted that public authorities also have a general duty to give reasons for their decisions.
However, exceptions do exist;
- when a decision is taken which, in the absence of reasons, looks completely wrong and the giving of reasons will enable the recipient to know whether the decision is challengeable or not.
- where the legal subject matter is particularly important e.g. personal liberty.
2. The right to a fair hearing does not always give parties the right to a full oral hearing (except possibly in forfeiture cases), but every claimant (regardless of the category of the case) is entitled to a hearing that is fair and reasonable in all the circumstances.
- may include offering to consider written appeals instead of full oral hearing.
- discretion at to whether cross-examination of witnesses should be permitted, but again only if the fairness of the circumstances requires it.
3. N.B. The rules of natural justice do not apply where the decision-maker has a legislative rather than a judicial function.
- This is because the delegated legislation usually affects the public or a section of the public as a whole, rather than having a separate effect on each individual's rights.
119
Explain procedural ultra vires? (statutory procedural requirements)
Placed upon decision-makers by the wording of the 'enabling' Acts of Parliament that give them their powers.
Historically, such have been classified as either 'mandatory' or 'directory', with failure to comply with a mandatory requirement rendering the decision invalid on grounds of procedural ultra vires but failure to comply with a directory requirement not.
To decide whether a procedural requirement is mandatory or directory, court to take into account;
- the wording of the statute itself.
- whether or not a claimant is substantially prejudiced by non-compliance with an important procedural safeguard.
Subsequently, it has been held that the correct procedure for the court to adopt is to put itself in the position of those who had enacted the legislation - would Parliament have intended the consequence of non-compliance with the relevant statutory requirement to be the invalidity of the decision that had been taken?
- distinction between the 2 merely the starting point.
120
When is judicial review the appropriate procedure to use?
Principle of procedural exclusivity requires that in an exclusively public law case, the judicial review procedure should normally be followed, rather than the ordinary private law procedure which is to be used in exclusively private law cases.
An exception to the above principle is where a case involves both private and public law, the public law element may be raised in private law proceedings.
N.B. Examples of the most common types of public law cases include;
- challenges to the making of a compulsory purchase order over land.
- challenges to the grant (or refusal) of a licence permitting a particular type of activity to be carried out.
- challenges to the refusal of discretionary financial grants.
N.B. A public law issue may be raised as a defence to private law proceedings.
121
Outline the 2-part test to ascertain what constitutes a public body?
Source of power test - if the body making a decision has been set up under statute or delegated legislation, or derives its power under a reviewable prerogative power, it is a public body OR
Nature of power test - if the body making the decision is exercising public law functions, it may still be a public body.
122
What is required for a claimant to make a claim for judicial review?
- Does claimant's claim raise public law issues? (above)
- Does claimant have a 'sufficient interest' in the matter to which the claim relates?
- Has the claim been brought within time?
- Ouster provisions? Appeal?
- IF SO, what are claimant's likely grounds of challenge? (above)
123
Define the 'sufficient interest' requirement?
Will not present a problem if claimant is personally affected by a decision, but may be an issue if claimant has no personal interest.
- N.B. The courts are unlikely to reject a valid judicial review claim simply on the grounds of a lack of standing.
Pressure groups may in the right circumstances have standing, but N.B. factors considered by courts to establish this;
- the need to uphold the rule of law.
- the importance of the issue raised.
- the likely absence of any other responsible challenger.
- the nature of the alleged breach of duty.
- the role of the pressure group (particularly important).
N.B. Recent tightening of the courts; public bodies should be more willing to challenge the standing of claimant's than they are presently.
N.B. If a number of people who are personally affected by a decision form a grouping to oppose that decision, such a group would not need to satisfy the above factors as each individual member would be personally affected by the decision and have sufficient standing.
124
Define the time limits to bring a judicial review claim?
A court can refuse a claim where it feels there has been 'undue delay'.
A claim form must be filed promptly, and within a maximum of 3 months after the ground to make the claim first arose (N.B. 6 weeks in planning and 30 days in procurement cases).
- The time limits in the CPR are without prejudice to any statutory provision that shortens the time limit for making a judicial review claim.
E.g. if an appellant had been aware and could have issued proceedings well before the 3 months, application will not be deemed to have been made promptly, and will be dismissed.
- N.B. In the financial field, a delay of even a few days can be detrimental to the interests of 3rd parties and to good administration and if applications are aware of the urgency of such a situation, no reason to delay making application.
125
Can the courts extend the time limit for bringing a judicial review claim?
Yes; but only where good reasons for the delay exist; judges will assess whether the merits of allowing a claim outweigh the undue delay and prejudice that would be caused by granting the permission.
- N.B. Delay in obtaining legal aid is not a complete answer to a failure to comply with procedural requirements (but may be a factor taken into account).
N.B. Even if permission was granted and the case proceeded to a full hearing, a remedy could be refused if the application had been made outside the 3 month time limit.
126
Define ouster clauses?
Present a potential pitfall for a judicial review claimant as they are inserted into the 'enabling' Acts of Parliament that grant the public body the power to make decisions in the first place.
Done where it wishes to exclude any right of challenge once a decision has been made by a public body.
Full ouster clause - purports to allow no right of challenge at all, and attempts to exclude the courts from playing any role in review of the decision.
Anisminic case rationale - whenever a body created by statute had misunderstood the law that regulated its decision-making powers, any decision based on such a misunderstanding had to be ultra vires and a 'nullity'.
-- Parliament could not have intended decisions that were legally incorrect to be immune from challenge, and thus any ouster clause would be ineffective in protecting such legally invalid decisions.
N.B. Has been held recently that it may be possible to exclude judicial review by the use of very clear and explicit words but not seen one upheld by the courts yet in practice.
Partial ouster clauses - provides some opportunity for a decision to be challenged by way of judicial review, and often may simply shorten the timeframe from that usually allowed to bring a judicial review claim.
- Proportionate balance between effective judicial review, and the need for certainty to enable such decisions to be acted on with confidence.
127
Summarise ouster clauses?
Courts have found ways of circumventing legislative attempts to exclude their judicial review jurisdiction and have held that full ouster clauses will not protect decisions that were never valid ('nullities').
The courts are willing to uphold partial ouster clauses that do not attempt to exclude judicial review, but merely shorten the time limit for bringing claims.
128
Outline the full procedure for bringing a judicial review claim?
Before starting proceedings, claimant should follow the Pre-Action Protocol for Judicial Review. This involves sending a letter before the claim to the decision-maker to give the latter 14 days to reconsider its decision and if possible, avoid unnecessary legal proceedings.
If the decision-maker's response satisfies the claimant, matter ends but if not, claimant should start formal proceedings and serve a claim form on defendant and any other interested party (states that claimant is requesting permission to proceed with a claim for judicial review and the remedy/remedies sought; also includes detailed statement of claimant's grounds for making the claim, facts relied on and supporting evidence).
N.B. If the judicial review proceedings are contested, defendant should respond to the claim form, indicating the grounds for contesting the claim.
When awarding costs, the courts will take into account any failure to follow the Protocol, but claimant does not have to follow it where the matter is urgent or where a time limit of less than 3 months applies.
Stage 1 - the permission stage;
-- Aimed at weeding out weak and frivolous claims.
-- Consider whether claimant has standing and whether the claim was begun in sufficient time.
-- Permission will not be granted if claimant cannot demonstrate either of the above or if the conduct complained of would be highly likely not to have resulted in a substantially different outcome for the claimant.
N.B. Courts may disregard above requirements for reasons of exceptional public interest.
Stage 2 - the hearing of the claim for judicial review;
-- If permission is granted, the court will proceed to a hearing before a judge in the Administrative Court, confined to arguments on points of law with a judge then ruling.
129
List and briefly explain the available remedies in judicial review?
Public law remedies - the 'prerogative orders';
- Quashing order.
--- Nullifies a decision found unlawful by the court, removing its legal effect.
--- Typically remits the decision back to the original decision-maker for reconsideration.
- Prohibiting order.
--- Prevents a public body from acting beyond its powers.
--- Rarely used, with claimant's often opting for injunctions instead.
- Mandatory order.
--- Compels a public body to perform a duty required by law.
--- Used when a public body fails to act on an application or legal duty.
Private law remedies - the 'non-prerogative orders';
- Declaration.
--- Clarifies or confirms legal rights or position without changing them.
--- Non-coercive; it can be disregarded without legal penalties.
- Injunction.
--- Restrains a person or body from engaging in illegal action, similar to and more popular than prohibition order.
--- Can be interim or final, with interim injunctions preventing actions while judicial review is pending.
- Damages.
--- Awarded when other relief is is sought in judicial review and a civil claim exists e.g. tort, contract.
All are at court's discretion and only available against public bodies.
- N.B. Court must refuse a remedy if it appears to the court to be highly likely that the outcome to the claimant would not have been substantially different if the conduct complained of had not occurred (court may disregard this for reasons of exceptional public interest).
