Constitutional + legal system Flashcards
Address judges
S, A , H: my lord/lady
District judge: Judge
Circuit + crown court (crown court judge can be circuit judge) : Your honour
Magistrate: your worship
Henry 8th powers
Ministers can amend acts
Grounds for judicial review
Illegality
irratonality (unreasonableness)
Procedural impropriety
Legitimate expectation
HR absolute rights
Never be interfered with and must be upheld at all times.
Absolute rights includes:
art. 2 right to life,
art. 3 freedom from torture, inhumane and degrading treatment,
art. 4 freedom of slavery,
art. 7 punishment according to existing law
Implied repeal
parliament makes a new act that contradics an old one
CAn proceedings be launched in Welsh
yes, court pays for interpreter
What are consitutional conventions
non-legal source of constitution, not enforceable by law. to limit the monarchs power
Public processions
Public procession: procession in a public place. Public place: highway, or any other way the public may lawfully access on payment or otherwise.
A: demonstrate support or opposition the view or actions of persons or bodies of people
B: publicize a cause or campaign
C: mark or commemorate an event
Includes football pitches.
Exceptions: funerals, customary processions e.g. Diwali
Offences under Public Order Act s. 11
At least six clear days prior notice to the police of the date, time and route
conditions on or ban of public processions if a senior police officer believes that the march will result in serious public disorder,
damage to property or disruption to the life of the community,
or the purpose is to intimidate others from doing something they have a right to do,
or to do something they do not have a right to do.
Possible crimes: not give notice, attend, organise
Public processions can be blanket banned for up to 3 months by Chief constable in the local police, by applying to the local authority for a banning order, which also must be accepted by the Home Secretary.
Public assembleys
No requirement to obtain permission to hold a meeting in a public space but could be trespassing on private land. The police have the power to grant “trespassory assemblies”.
A senior policeman can impose conditions on a public assembly if they reasonably believe that may result in serious public disorder, damage to property or disruption to the life of the community, or the purpose is to intimidate others.
Conditions must be proportionate.
A public assembly is 2+ people in a public space wholly or partially open to air. The purpose is irrelevant.
Possible offences: organize, attend
Trespassory assemblies
Trespassory assemblies
Banned in 1994 under the Criminal Justice and Public Order Act.
Encompasses assemblies of 20+ people in open air entirely where the public has no or limited right to access.
Can be banned if a Chief officer of the police believes that it is intended to be held without permission of the occupier and may result in serious disruption of community.
Offences: organizing (3 months prison, fine or both), parking part or incitement to organize or take part (fine)
Banned in 1994 under the Criminal Justice and Public Order Act.
Encompasses assemblies of 20+ people in open air entirely where the public has no or limited right to access.
Can be banned if a Chief officer of the police believes that it is intended to be held without permission of the occupier and may result in serious disruption of community.
Offences: organizing (3 months prison, fine or both), parking part or incitement to organize or take part (fine)
Breach of the peace
Common law powers to the police.
R v Howell: breach of peace is when harm is actually done or likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.
Not a criminal offence, but triggers police powers. Solved by civil proceedings, but the criminal threshold to standard of proof has to be met: “beyond reasonable doubt”.
Conditions for arrest due to breach of peace:
1. breach of peace committed in the presence of the person making the arrest OR
2. arrestor “reasonably believes” that a breach will be committed in the “imminent future”, OR
3. a breach is committed and it is reasonably believed that a renewal of it is threatened.
Duncan v Jones: police can use common law powers to prevent a public meeting based on e.g. previous meetings. Police can prevent demonstrators from joining demonstrations if breach of the peace is imminent. Crown control does not necessarily breach ECHR art. 5 if they are employed in good faith and proportionate.
Breach of the peace covers both public and private property
Judicial review - deadlines in the pre-action protocol + CPR p. 54
Follow pre-action protocol for judicial review:
Send a letter to the decision maker before claiming to give the decision maker 14 days to reconsider the decision and avoid unnecessary legal proceedings. Following protocol is relevant for costs.
CLaim must be filed promptly and maximum 3 months after the ground to make the claim first arose (can be dismissed if there was no reason to wait until the end of the 3 months).
For cases within the “planning act” the deadline is 6 weeks from the date of the decision
Public procurement cases are 30 days.
Stage 1: permission (CPR p. 54)
Court considers whether the claimant has standing and the claim was begun in sufficient time. Standing is not granted if the court finds that it is not likely that the result would be substantially different if the decision maker followed proper conduct. Last requirement may be disregarded for public interest.
Claimant issues claim form in the Administrative court, claim form is served to defendant, court decides whether to grant permission and if permission is granted the defendant will file evidence. Then stage 2 follows, with the hearing.
Stage 2: hearing of the claim for judicial review
Administrative court in the high court, usually confined to arguments of points of law.
Ouster clause
a clause in the enabling Act of Parliament which grants public bodies power to make decisions in the first place.an ouster clause in an act excludes any challenging of a decision made by a public body. Full ouster clause: no right to challenge at all, but solely protect valid decisions and not e.g. situations where a public body has stepped outside of their powers. Partial ouster clauses leave some opportunities for review.
WHen can a party launche case for ECtHR
State application: brough by a signatory state against another
Individual petition to the ECtHR: individuals who claim their rights are breached by domestic law can start proceedings. DOmestic remedies must be exhausted and it must be petitioned within 4 months of the final dometic decision. Applicants must (personally + directly) be victims and suffer a significant disadvantage.
Domestic remedies are exhausted if the case has been dismissed! by the supreme court.
Process - two stages:
Admissibility stage: a single judge may declare application inadmissible with no appeal rights.
Merits stage:If there is well-established case law, the case is decided by a 3 member committee for a final decision. It can also be heard by a chamber of judges based on majority.
Retained direct minor EU legislation
Retained direct minor EU legislation (what does not fall under principal) can be amended or repealed by primary legislation or in limited circumstances by secondary legislation (Henry VIII power and where ministers are using powers under EUWA 2018 to correct deficiencies)
retained direct principal EU legislation
(most EU Regulations) Retained EU law primary legislation can only be challenged by the fact that it contravenes with other retained EU law. Retained EU law secondary legislation can only be challenged on the same basis. After IP completion day, retained EU law cannot be challenged by the fact that an EU instrument was invalid, except if CJEU found an instrument to be invalid prior to IP completion day.
Can the supreme court depart from retainde EU case law?
yes, same test as when they depart from their own caselaw
Rules of interpretation (judges may use for words)
the literal rule: words are given their plain, ordinary and literal meaning. Usually the starting point, to ensure that the parliament remains sovereign (court is only supposed to interpret the law)
the golden rule: Words should be given its ordinary meaning unless this gives an absurd or totally obnoxious result. Applicable where words both have one or several meanings.
the mischief rule: the interpreter ascertains the legislators intention. What defect in existing law was the statute supposed to remedy?
the purposive approach: Why the statute was passed and its purpose, even if it means departing from the ordinary meaning of the words.
Which courts can bind other courts and when can they depart from their own rulings?
SUpreme court: not bound by its own previous decisions, but departing is unusual. Binds courts below.
Court of appeal: Binds courts below and is bound by the supreme court.
Can depart from its own decisions if:
- conflict with it
- it has been overrules by the Supreme Court
- it was made by carelessness
High court and other courts: bound by its own decisions unless:
- conflict with it
- it has been overrules by the Supreme Court
- it was made by carelessness
County court, magistrates family court and tribunals does not bind anyone.
What are The Parliament Acts of 1911 and 1949
The Parliament Acts of 1911 and 1949 limit the power of the House of Lords in relation to the House of Commons. They replaced the Lords’ right to veto Commons Bills with a right only to delay them and put into law the Commons’ exclusive powers to pass Bills on public tax and spending.
Hence a bill can go straight from HoC to Royal assent.
What are the 3 types of Human Rights and
Absolute rights
Never be interfered with and must be upheld at all times.
Absolute rights includes:
art. 2 right to life,
art. 3 freedom from torture, inhumane and degrading treatment,
art. 4 freedom of slavery,
art. 7 punishment according to existing law
Limited/derogable rights
Can only be limited in defined and finite situations, such as public emergencies
Limited rights includes:
art. 5 liberty and security (exceptions in relation to lawful arrest and detention),
art. 6 fair trial (exceptions in relation to trial being public)
art. 12 right to marry (but according to the governing national law)
Qualified rights
Require a balance between the rights of the individual and the wider public interest.
Qualified rights include:
art. 8 respect for private and family life,
art. 9 freedom of thought (qualified in relation to teaching, worship, practice and observation),
art. 10 freedom of expression,
art. 11 freedom of assembly and association,
Art. 14 freedom of discrimination
art 1 og protocol 1 enjoyment of possessions.
What prevails of statute and prerogative powers of the government?
Statute prevails over prerogative powers
What is bias as part of judicial review?
Part of the ground of Procedural impropriety
Procedural fairness - the rules of natural fairness are common law rules. Controversial as they were created by the judiciary themselves. Two rules of natural justice: the rule against bias and the right to a fair hearing.
Bias depends on whether the interest the decision maker has in the outcome is direct or indirect. Direct interests include financial gain, property interest. Indirect interests could be where a relative of the decision maker would have the benefit. The link between the decision and the benefit would have to be assessed.
A right to a fair hearing is flexible and depends on the content of each case.
What is irrationality as part of judicial review?
Substantive ground for review, as it focuses on the substance of the disputed decision. The court looks at the decision reached, rather than the procedure for reaching it.
Require proof of a very high degree of unreasonableness.
The Wednesbury principle: having regard to relevant considerations only, the decision-maker came to a conclusion so outrageous in its defiance of logic or accepted moral standards that no reasonable authority could have come to it.
Proportionality: an alternative test. likely a part of irrationality and judicial review. Has previously been considered as part of the Wednesbury principle, but now seems to have a wider function. Require that power is exercised in a proportionate manner compared with the object being pursued.
What is illegality as part of judicial review?
Substantive ground for review, as it focuses on the substance of the disputed decision.
An action beyond the powers of the public body either because the powers do not exist or they are abused or exceeded.
Examples:
unlawful sub-delegation,
error of law or fact,
powers used for the purpose are different than the ones envisaged by the law under which they were granted,
ignoring relevant considerations or taking into account irrelevant considerations
General rule that decision making powers cannot be delegated from Parliament. Exceptions:
- Carltona: a government minister can delegate decision making powers to civil cervantes in their departments
- Fettering discretion: if a parliament provides a public body with discretionary powers, the court will generally not accept that this is delegated to others or extended. Includes that a public authority cannot act under the dictation of another person or body. Public authorities can make and apply guidelines to ensure equal decisions without it being fettering.
Cannot use powers for an improper or unauthorized purpose, but if there’s a dual purpose and one is legitimate, the primary purpose must be assessed. A public authority cannot take into account improper considerations and fail to take into account relevant considerations. Errors of law that affects the decision will be amended, but the courts are more cautious to amend errors of fact.
What is legitimate expectation as part of judicial review?
Legitimate expectation: express promise or existence of a working practice.
Two types:
Procedural legitimate expectation: decision maker fails to follow a normal procedure. E.g. promise to offer taxi licenses to a company first and then break the promise. A public body should apply even an unpublished policy unless it has good reasons not to do so.
Substantive legitimate expectation: decision maker has led someone to believe that they will receive a benefit. E.g. reassurance that a patient was able to stay at a certain rehabilitation facility for as long as necessary, but later moving the patient due to cost was a breach of a legitimate expectation.
When can judicial review be initiated and when is it the right procedure?
Must have been made by a public body. Decisions from private bodies must be challenged under private law.
Test to ensure decision is made by a public body:
1. source of power (the body is set up under a statute or delegated power or derives power under a renewable derogatory power) OR
2. nature of the power (the body is exercising public law functions).
Is judicial review the right procedure?
Should be raised in public law matter e.g. not pure tort or contract matters, rather than the ordinary private law procedure. If a case is a mix of public and private law, public law elements may be raised in private law proceedings.
Beer: local authority established a farmers market that was later handed over to a private company. A claimants which renewal application was refused successfully argued that the decision was subject to judicial review, as the private company has “stepped into the shoes” of the public authority.
This includes criminal law e.g. Boddington where a smoker on a train was allowed to argue as a define that the bylaw banning smoking was illegal (public law defence).
What is the procedure for pardon?
Request to the lord chancellor who decides whether to forward to the King.
If the lord chancellor decides not to forward the request, it cannot be tried in court, as exercise of the prerogative of mercy is non-justiciable. the decisions are left to the exeutive or parliamen,t and not to the courts.
non justiciary:
- grant of honours by the King
- grant of mercy
- public policy directions taken by the Government, such as funding of local governments.
The monarchs powers
Appoint life peers to the HoL on advice from PM
Consult ministers
Constitutional and representational duties incl. appointing the prime minister
Head of the armed forces
Open, summon and prorogue parliament
Can the Scotland Acts be repealed and if so, how?
Yes, they are acts of parliament and c.f. principle of parliamentary soveregnty they can be repealed by parliament.
Can CJEU decisions from before IP completion day be overruled by UK courts?
Yes, but only by the Supreme Court and court of appeal. the test is the same as to when they depart from their own caselaw. THe high court is bound by retained EU case law.
How is a senior judge removed from their position?
Resolutions on both HoL and HoC. Not subject to terms and hold office until retirement.
Supreme court justice - qualifications:
Held high judicial office for 2+ years (incl. high court)
Been a qualified practicioner for 15 years.
Are ECtHR decisions binding on UK courts?
Cost distribution?
Not binding nor enforceable on national courts, but binding on national governments. Therefore if ECtHR grants damages to a claimant, the state is likely to pay these, as governments are bound as signatories.
State likely to carry costs if lost. Alleged victim does not carry a states costs if they lose the claim.
Can a solicitor act for a client in a case where you or someone in the firm is likely to be called as a witness?
no. in breach with SRA principle re independence
Which courts can make declarations on incompatability with human rights?
The High court, court of appeal and supreme court. a DOI is only advisory, as courts cannot strike down primary statute.
What kind of state is the UK?
A sovereign unitary state
UK jurisdictions
England & Wales, Scotland, Northern Ireland
What is devolution?
desentralisation of power through establishment of scottish parliament and assemblies in wales + northern ireland.
West lothian question
MPs representing constituencies in Scotand, wales and Norther Ireland can vote on laws that solely affect England, whilst English MPs are being banned from doing the same.
statutory instruments
form of legislation that allows for amendments to acts of parliaent without the parliament passing another act. also referred to as secondary, delegated or subordinate legislation. If parliament delegates powers to other authorities, these rules are statutory instruments.
