CONSTITUTIONAL LAW Flashcards
(35 cards)
Describe Lord Hailsham’s “elective dictatorship.”
Every five years or so, the public elects a new Executive; until the public vote again the Executive can usually take control of the legislative agenda because the Executive dominates the Legislature when it has a majority in Parliament, and the public cannot remove the Executive from office.
Discuss UNREASONABLENESS in JR claims.
The threshold for setting aside a decision on the grounds of unreasonableness or irrationality is very high. Generally, a decision can only be challenged on the grounds of Wednesbury unreasonableness or irrationality if it is ‘so unreasonable’ that ‘no reasonable authority could ever have come to it’ (Associated Provincial Picture Houses Ltd v Wednesbury Corporation) or ‘so outrageous’ in its defiance of logic that ‘no sensible person’ could have reached it (CCSU v Minister for Civil Service).
Can the army be deployed to deliver fuel to civilian petrol stations?
Following De Keyser’s Royal Hotel [1920] AC 508, and R v Secretary of State for the Home Department, ep Fire Brigades Union [1995] 2 AC 513, the House of Lords held that it would be an abuse of prerogative power for a minister to exercise power in a way which is inconsistent with statute, due to Parliamentary Supremacy.
Parliament
Has the 1911, 1949 procedure of introducing acts been challened?
The Parliament Acts 1911 and 1949 have been challenged (in cases such as R v Jackson), however the challenges were unsuccessful.
Which courts must follow CJEU judgements?
UK courts below the Supreme Court and Court of Appeal, such as the County Court, must follow CJEU judgments which became retained EU case law/assimilated case law.
Discuss implications of the ‘Enrolled Act.’
Under the ‘Enrolled Act’ rule, once a bill has passed both Houses of Parliament and received Royal Assent no court can question the validity of the Act or hold that Act to be void.
What is PARLIAMENTARY SOVEREIGNTY?
Parliament Sovereignty states that Parliament is the supreme law-making body and may enact or repeal laws on any subject. This however does not mean that Parliament, when enacting law, is not/could not be in breach of the rule of law.
Rule of Law
What are the implications of a Home Secretary not following a court order?
He will be in breach of the rule of law, since no one is above the law, and could be in contempt of court.
HRA 1998
HRA and ECHR
HRA 1998 enacts much of the ECHR/Convention into domestic law.
ECHR is an international treaty, with its own court, ECtHR in Strasbourg. Leaving the EU does not affect the UK’s accession to the ECHR.
HRA 1998
Three types of Articles
- ABSOLUTE: rights must always be upheld without exceptions.
- LIMITED: any restriction on the right is clearly defined and limited to specific situations.
- QUALIFIED: where a balance has to be struck between individual rights and wider public interest.
HRA 1998
What has the HRA empowered courts to do?
“interpret” domestic legislation so far as possible to do so to render it compatible with the ECHR, or if cannot…
…make a declaration that legislation is incompatible with ECHR right.
HRA 1998
Article 15
Provides for the operation of derogations from the ECHR obligation:
1. In time of war or other public emergencies.
2. No derogation from ARTICLES 2, or 3, 4 and 7.
3. Shall keep Secretary General of European Council of Europe fully informed of measures taken and reasons thereof [PROCEDURAL HURDLE].
In order to use A15, state must meet reqs:
1. There must be a public emergency threatening the life of the nation.
2. The measures taken must be strictly required by the exigencies of the situation.
3. The measures must be consistent with its obligations under international law.
The situation must be exceptional such that normal measures would be inadequate.
HRA 1998
Coronavirus Act 2020
The UK did not seek derogation from ECHR, instead passed its own act (CA ‘20) giving the Government very wide powers to deal with the crisis and thereby also curtail individual liberty.
HRA 1998
HRA and its implications in the legal system.
- Creates a duty for courts or tribunals, to take into account any judgement or decision by the ECtHR.
- Positive obligation to avoid breach of A2.
- HofL have clarified that lower courts should follow a clear and consistent line of jurispudence with the ECtHR unless special circumstances, or the decision is at odds with the distribution.
- THE MIRROR PRINCIPLE: level of protection afforded by UK courts is no less, but no more than ECtHR.
- Proportionality.
HRA 1998
What is the concept of proportionality?
Balancing: the general interest of the community and the requirements of the protection of the individual’s fundamental rights.
HRA 1998
In bringing a claim, how can someone show to have standing?
The applicant must be a VICTIM (or where victim is deceased, a close relative of).
VICTIM is defined as any natural or legal person “directly affected” by an actual or potential breach.
HRA 1998
The potential violation must have been committed by a public authority. What are the 2 types of ‘public authorities?’
- CORE public authorities (I.e., governmental bodies which have a statutory constitution, have democratic accountability, are funded wholly or partially through public funds, and/or which have special powers).
- FUNCTIONAL or HYBRID public authorities: a) acting in lieu of gov body; b) exercising statutory powers; c) using public funding; d) providing a public service. E.g., Housing associations and private elderly homes. Only when exercising in their public functions.
HRA 1998
The action must be in time - what is the deadline?
The case must be brought within a year of the violation (unless exceptional circumstances apply and the court considers it equitable to extend time limits).
HRA 1998
Considering the merits of the claim.
- Courts will consider the exact wording of each right and whether it has been breached.
- Any derogations from A5 must be “prescribed by law” and in “pursuit of a legitimate aim.”
- Any derogations from A8 must be “in accordance with the law” and “in pursuit of a legitimate aim”, and “necessary in a democratic society.”
HRA 1998: merits of claim
Discuss “prescribed by law.”
- Is there a valid legal basis (check legislation) under which the violation is enabled.
- Accessible?
- Clear and predictable? Does an individual or their legal advisor know in advance how and when the law will be applied? (such that the individual can regulate their conduct accordingly)
- Arbitrary? If such arbitrary application is possible, then this will, in and of itself, be a prima facie breach.
HRA 1998: merits of claim
Discuss “in pursuit of a legitimate aim.”
Similarly, look out for: “in the interests of national security, public safety etc…”
Art 5(1) lists the situations in which a person can legitimately be deprived of their liability.
HRA 1998: merits of claim
Discuss “necessary in a democratic society.”
- This is a proportionality test, which asks: “is the interference in order to fulfil a social need so pressing that it outweighs the public interest in upholding that freedom?”
- In assessing whether the public authority’s actions were proportionate, it may be helpful to ask whether they could have achieved the same result by less intrusive means. If they could, their actions are likely to have been disproportionate.
HRA 1998
Where legislation is compatible with ECHR, what will the UK courts consider?
- Courts will consider the UK legislation in light of the aims, objectives and specific Articles of the ECHR. If compatible, the courts will rule that the public authority has actually acted in a way unauthorised by by domestic legislation or ECHR.
- LA was acting unlawfully and cannot claim defence.
- Victim is entitled to JUST AND APPROPRIATE remedy.
- Damages are only awarded where the court is satisfied it is necessary to afford “JUST SATISFACTION.”
HRA 1998
Where legislation is incompatible with ECHR, what will the UK courts consider?
- Court may issue a s.4 DOI. No legal effect on the legislation, which remains in force until such time as it is amended.
- Victim is not entitled to any domestic remedy.
- Instead, victims take their cases to ECoHR in Strasbourg and claim a breach by the UK of its international obligations.
