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ELS Flashcards

1
Q

What is private law?

A

Duties owed to or by individuals

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2
Q

What is public law?

A

Duties owed to the state

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3
Q

What is a private statute? (example)

A

A statue that affects a particular person or locality (eg to build a new section of railway)

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4
Q

What is an example of a public statute?

A

Legislation amending the law

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5
Q

What are the three branches of the state?

A

The executive - implement the law (The cabinet, PM, police force etc)
The legislature - make the law (House of Lords, House of Commons)
The judiciary - dispense the law (all judges)

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6
Q

How is an Act of Parliament created? (8)

A

First reading
- Basic introduction

Second reading
- Debate on the principles of the Bill

Committee stage
- Reviewed by a committee. There may be some amendments

Report stage
- If any amendments made, report stage is necessary

Third reading
- Consider any amendments - usually very brief

House of Lords
- Go through each stage again in HoL

Amendments by Lords
- Back to Commons with any amendments

Royal Assent

  • Monarch approves bill
  • It becomes an Act of Parliament
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7
Q

What is the hierarchy of courts? (5)

A
  1. Supreme Court
  2. Court of Appeal
  3. High Court
  4. Crown Court
  5. Magistrates/County/Family
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8
Q

What are the powers of a superior court?

A
  • Have unlimited jurisdiction
  • Can try any claim and how much it is worth
  • Most important and difficult cases
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9
Q

What are the powers of a inferior court?

A
  • Limited geographical and financial jurisdiction
  • Deal with less important cases
  • Most cases are dealt with in these courts
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10
Q

What is the factfile for county court? (location, who sits, jurisdiction)

A 
Location
- All over the country 
Who sits
- Circuit or district judges with 5 year qualification
Jurisdiction (civil)
- General tort or contract actions
- Land
- Will disputes
- up to £100,000 or personal injury claims of £50,000
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11
Q

What is the factfile for family court? (location, who sits, jurisdiction)

A 
Location 
- One in each area
Who sits
- Wide variety, could be anyone
Jurisdiction (civil)
- Parental disputes
- Divorce
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12
Q

What is the factfile for magistrates court? (location, who sits, jurisdiction)

A 
Location 
- All over the country
Who sits
- Lay magistrates from the public
Jurisdiction (criminal)
- Summonses and warrants for search and arrest
- Trial of summary offences
- Youth courts
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13
Q

What is the factfile for crown court? (location, who sits, jurisdiction)

A 
Location 
- One court divided in to 6 circuits 
- London one is the Old Bailey
Who sits
- Depends on gravity of the case
- High court judges usually
Jurisdiction (criminal)
- Trials of indictment (with a jury)
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14
Q

What is the factfile for high court? (location, who sits NOT jurisdiction)

A

Location
- Royal Courts of Justice, London
Who sits
- One High Court judge

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15
Q

What are the three divisions of the high court?

A 
Queen's Bench Division
- Contract and tort over £100,000
- Criminal appeals 
Chancery Division
- Disputes over wills
- Company law
- Land law
Family division
- Certain high profile cases
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16
Q

What is the factfile for the supreme court? (location, who sits, jurisdiction)

A 
Location 
- Parliament Square, Westminster
Who sits
- 5 Supreme Court judges
Jurisdiction 
- Almost entirely appellate, the final court of appeal
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17
Q

What is the factfile for the privy council? (location, who sits, jurisdiction)

A 
Location
- Parliament Square
Who sits
- Usually Supreme Court judges
Jurisdiction
- Appeals from Commonwealth countries 
- Not binding on English courts but persuasive
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18
Q

Why is the privy council in decline?

A
  • NZ have abolished using it

- Caribbean Court of Justice set up for Commonwealth countries in the Caribbean

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19
Q

What is the factfile for the European Court of Justice? (location, who sits, jurisdiction)

A 
Location 
- Luxembourg
Who sits
- Judges appointed by Member States
Jurisdiction 
- Ensures European Law is applied uniformly
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20
Q

What is the factfile for the the European Court of Human Rights? (location, who sits, jurisdiction)

A

Location
- Strasbourg
Who sits
- Judges appointed from each State which is part of the European Convention of Human Rights
Jurisdiction
- Anyone who complains about a breach of Human Rights

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21
Q

What are the steps in civil proceedings? (6)

A
  1. Pre-commencement
    - Claimant and defendant try to settle outside of the court
  2. Commencement of Proceedings
    - Issue claim form and court decided
  3. Interim matters
    - Court will give directions as to preparation
  4. Trial
    - Judge sitting alone will decide
    - Losing party will be forced to pay winner’s legal costs, unless under £10,000
  5. Enforcement of judgement
    - Courts responsibility ends there
    - Can order bailiffs to seize unsuccessful party’s property
  6. Appeal
    - Losing party can request permission to appeal
    - Will only be given if real prospect of success
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22
Q

What are the steps in criminal proceedings? (5)

A
  1. Police investigate
  2. Police commence proceedings (eg charge someone with offence)
  3. Will then go to whichever court it is meant to
    Summary offence (magistrates)
    Either way (depending on seriousness of case)
    Indictment only (crown court)
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23
Q

What must happen before each criminal case commences?

A

Must be read out in the magistrates court, there they will decide which court it will be tried in

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24
Q

Does the ECHR or the ECJ bind?

A
  • No

- Very persuasive

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25
Q

Does the Privy Council bind?

A
  • No

- Very persuasive

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26
Q

Does the Supreme Court bind?

A
  • Not itself

- All courts below

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27
Q

Does the Court of Appeal bind?

A
  • Normally binds itself

- All courts below

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28
Q

What are the exceptions for the Court of Appeal binding itself? (authority) (5)

A

Young v Bristol

  1. Where its own previous decisions conflict
  2. Where its previous decision has been overriden by the Supreme Court
  3. Where it is inconsistent with human rights
  4. Where its previous decision was wrong (through carelessness)
  5. Where it was an interim decision by two judges
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29
Q

Does the High Court bind?

1st instance and appellate

A

If 1st instance
- Binds courts below but not itself
If appellate
- Binds courts below and normally binds itself

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30
Q

Does the Crown Court bind?

A

Binds no one

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31
Q

Does the County Court bind?

A

Binds no one

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32
Q

Does the Magistrates Courts bind?

A

Binds no one

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33
Q

Does the Family Court (High Court) bind? (1st instance and appellate)

A

1st instance
- Binds courts below but not itself
Appellate
- Binds courts below and normally binds itself

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34
Q

Does the Family Court below High Court bind?

A

Binds no one

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35
Q

What is the literal rule?

A

Applying the language of a statute to the ordinary meaning of the words
This is even if the outcome is harsh or undesirable

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36
Q

What is the golden rule?

A

Main aim is to reduce absurd results

If literal rule produces an absurd result, will use golden rule to understand the meaning of the words

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37
Q

What is the mischief rule?

A

Tries to interpret the statute in line with INTENT of the Parliament

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38
Q

What is the purposive approach?

A

Used for laws derived from EU legislation
Intent of the legislation
VERY SIMILAR TO MISCHIEF

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39
Q

What does Eiusdem Generis mean? and what rule?

A

Of the Same Kind or Nature
- If a general word follows two or more specific words, that general words will only apply to the same type of those specific words

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40
Q

What does Noscitur a Sociis mean?

A

Known by the company it keeps

- A word derives meaning from the surrounding words

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41
Q

What does Expression Unius est Exclusio Alterius mean?

A

Expressing one thing excludes another

- Ay mention of one thing can exclude others of the same type

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42
Q

What are intrinsic aids to interpretation?

A
  • Long title
  • Headings
  • Marginal notes
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43
Q

What are extrinsic aids to interpretation?

A
  • Hansard
  • Dictionaries
  • Interpretation of Acts
  • Law Commission
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44
Q

What is the interpretation of acts?

A

Give general assumptions for interpreting statutes

eg Masculine always includes feminine

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45
Q

What is Hansard?

A

A public minutes of everything said in the Commons

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46
Q

What was established in Pepper v Hart?

A

When using Hansard

  • Should only be used in relation to a clear statement given by a relevant minister or promoter of the Bill
  • Only when the statute is ambiguous
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47
Q

How can you use the dictionary?

A

To define a particular word

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48
Q

Can you use academic know how?

A

Yes

- Derive assistance from articles written on controversial areas of law by legal academics

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49
Q

What is the doctrine of precedent?

A

English courts are bound by their previous decisions

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50
Q

What is ratio decidendi?

A

The rule of law on which a particular decision is based (legally binding)

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51
Q

What is the obiter dicta?

A

An expression by a judge that is not essential to decision (not binding but persuasive)

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52
Q

What is the difference between overruling and reversing?

A

Overruling is overturning the precedent set by a previous case
Reversing is changing the decision from a lower court of the same case

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53
Q

What is the constitution?

A

Fundamental rules and principles which establish and regulate the government

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54
Q

What is different about the UK constitution?

A

It is unwritten

- No single authoritative document in which the rules which establish and regulate government are set out

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55
Q

What are the sources of the constitution?

A
  1. Statute
  2. Case law/common law
  3. Royal prerogative
  4. Constitutional convention
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56
Q

What comes under statute as a source of the constitution?

A

Acts of Parliament

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57
Q

What was established in Entick v Carrington?

A

Actions of the state must have legal authority if they are to be lawful

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58
Q

What was established in Prohibitions del Roy?

A

Legal disputes should be resolved by the judiciary

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59
Q

What was established in the Belmarsh case?

A

An individual who has been detained by the state has the right to have the legality of that detention tested before the court

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60
Q

What is residual freedom?

A

A person can do or say as they wish as long as it is not against the law

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61
Q

What is the royal prerogative?

A

The authority of the Crown

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62
Q

What is part of the modern royal prerogative?

A

Foreign affairs: declarations of war, treaties etc
Domestic affairs: summoning of Parliament, defence of the realm, Royal Assent of Bills

ALL LEFT IN HANDS OF EXECUTIVE

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63
Q

What are constitutional conventions?

A

These are sources of the constitution which are unwritten and non-binding but very persuasive

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64
Q

What happened at Madzimbamuto and what was established?

A

The courts will not directly enforce conventions
Southern Rhodesia convention to not legislate without their consent. However implemented the Southern Rhodesia Act against convention

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65
Q

What happened at A-G v Jonathan Cape?

A

Cabinet minister published series of books relating to his role. Sought to rely on convention in courts but could not.

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66
Q

What are advantages of a written constitution?

A
  1. Clarity
  2. Defines rights of individuals
  3. Holds Parliament to a strict account
  4. Brings Britain in line with rest of the world
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67
Q

What are disadvantages of written constitution?

A
  1. Can become entrenched
  2. Elections give a government a mandate to implement new laws
  3. American system does not make sense as UK too small
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68
Q

What is collective cabinet responsibility?

A

Ministers are bound by the actions of the government - once a position is adopted, they must support it
If they do not they must resign

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69
Q

When has someone resigned over collective cabinet responsibility?

A

Robin Cook resigning over Iraq War

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70
Q

Why has collective cabinet responsibility been weakened?

A

Brexit - different parties and minister campaigned on different sides

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71
Q

What is individual ministerial responsibility?

A

Ministers should be held accountable for their work and their departments
Parliament can scrutinise this

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72
Q

What are conventions relating to the crown?

A
  1. Must give royal assent
  2. Allows PM to appoint ministers
  3. Government exercises powers, not the Crown
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73
Q

What are conventions relating to the separation of powers?

A

Members of the executive do not criticise the jury

Members of the jury do not engage in party politics

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74
Q

What is the Salisbury Convention?

A

The unelected House of Lords will not reject legislation that gives effect to an important manifesto commitment of the democratically elected Government

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75
Q

What is the Sewell Convention?

A

Only legislate on a matter which has been devolved to the Scottish Parliament if the Scottish Parliament has given its consent

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76
Q

What are AV Dicey’s three elements to the rule of law?

A
  1. No one should be punished without breach of law
  2. Equality before the law
  3. Judicial enforcement of the law
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77
Q

Who made a more modern view of the rule of law?

A

Lord Bingham

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78
Q

Who else made a view of the rule of law?

A

JUSTICE manifesto

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79
Q

What are the 5 consistent elements when discussing the rule of law?

A
  1. Legal certainty
  2. Personal liberty
  3. Due process of law
  4. Equality before the law
  5. Court as protectors of individual liberty
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80
Q

Where does Bingham go further than Dicey?

A
  • Bingham includes Human Rights and compliance with international law
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81
Q

What are contemporary threats to the rule of law?

A 
1 Legal aid cuts
2 Curbs on judicial review
3 Snooper's charter - Investigatory Powers Act 
4 HRA repeal 
5 Misuse of public funds
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82
Q

What is Parliamentary Supremacy?

A

The Parliament has a right to make any law and no one can override it

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83
Q

What is important about successors of Parliament?

A

They cannot be entrenched - a future Parliament can repeal the actions of a previous one

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84
Q

What is the position of the courts and parliamentary supremacy?

A

Courts cannot declare legislation unconstitutional

85
Q

What is the doctrine of the separation of powers?

A

Three branches - legislative, executive and judiciary all have different roles in maintaining the constitution

86
Q

Why have separation of powers?

A
  • To avoid arbitrary government

- Effective system of checks and balances

87
Q

What is the Constitutional Reform Act 2005

A
  • Removed Lord Chancellor as head of the judiciary. Replaced with Lord Chief Justice
  • Created a new Supreme Court which replaced law lords from House of Lords
  • Created the Judicial Appointments Commission
88
Q

What is the sub-judice rule?

A

Parliament will refrain from discussing matters currently being heard or waiting to be heard in court

89
Q

What is the House of Commons Disqualification Act 1975?

A

Section 1 - excludes certain members of the executive holding public office (eg police, armed forces etc)
Section 2 - Limits the number of government ministers to 95 in the House of Commons

90
Q

What was enforced in Article 9 of the Bill of Rights?

A

Freedom of speech in Parliament, without fear of court proceedings

91
Q

What was the Crown Proceedings Act 1947?

A

Civil actions could be brought against the Crown in the same way as anyone else

92
Q

What was the Fixed Parliaments Act 2011?

A

Removed the royal prerogative of being able to call an election at any time - must now be every 5 years

93
Q

What happened in the case of BBC v Johns?

A

BBC tried to rely on the Crown’s exemption from income tax. This was rejected as royal prerogative could not be extended

94
Q

What happened in Blackburn v Attorney General?

A

Claimant tried to assert that decision to join EEC was illegal as diminished parliamentary supremacy. Again could not extend powers - international treaty was part of the royal prerogative

95
Q

What is elective dictatorship?

A

Said by Lord Hailsham
That once a government has been elected, it can effectively pass what it wants
Has a mandate and can use it to that effect

96
Q

What are Henry VIII powers?

A

Allows for the amendment or repeal of legislation by the government, without reference back to Parliament

97
Q

When have judges had political influence?

A

Political inquiries

Hutton and Leveson inquiries

98
Q

What happened in the Belmarsh case?

A

After 9/11, began to put those suspected of terrorist activities in to Belmarsh without a trial. Appealed this and won, suggesting against human rights of a right to a fair trial.

99
Q

What happened in CCSU v Minister for the Civil Service?

A

Thatcher said that employees from GCHQ could not join trade unions in light of national security. The courts said they could do nothing as this was a non-justiciable power.

100
Q

What are non-justiciable powers?

A
  • International treaties
  • Control of the armed forces
  • Defence of the realm
  • Granting public honours
  • Dissolution of parliament
101
Q

What was the effect of the role of the Home Secretary after Belmarsh?

A

Had the effect of implementing judicial matters - this was removed

102
Q

What did the Jackson v A-G case establish on parliamentary supremacy? and what happened?

A

It was a case about the Hunting Act 2004. Claimant said it was an unlawful act as had been passed using Parliament Act 1949, which excluded the House of Lords. It showed that the House of Lords was willing to consider the validity of an Act - which in turn showed that not full Parliamentary supremacy

103
Q

What did Article 9 Bill of rights say on parliamentary supremacy?

A

Parliamentary privilege in Commons that cannot be followed up in court. Therefore parliamentary supremacy

104
Q

What is the Enrolled Act rule?

A

All the court of justice can do is look at the Parliamentary Roll. Once it has been entered, the courts will not question the validity of the Act

105
Q

What cases back up the Enrolled Act rule? (2)

A

Edinburgh v Wauchope: private act passed by Parliament adversely affected Wauchope’s rights against a railway company
However court could not act as Act of Parliament had already been passed

Pickin v British Railway: Court held that the validity of an act could not be questioned

106
Q

What did Cheney v Conn say about parliamentary supremacy? and what happened?

A

Taxpayer challenged income tax paying for nuclear weapons as contrary to Geneva Convention - unsuccessful due to parliamentary supremacy

107
Q

What did Madzimabuto say about parliamentary supremacy?

A

Can override convention

108
Q

Can statute alter the constitution? examples

A

YES

  • Acts of Union 1707
  • ECA 1972
  • EWA 2018
109
Q

Can statute abolish the Royal Prerogative?

A

YES

  • Crown Proceedings Act 1947
  • Fixed Term Parliaments Act 2011
110
Q

Can statute operate retrospectively?

A

Burmah Oil and War Damages Act 1965

  • Court found Crown liable to pay war damages
  • Parliament applied retrospective statute to override this ruling
111
Q

What is express repeal of statute?

A

Parliament can declare within an Act, that the previous act is no longer valid

112
Q

What is implied repeal of statute?

A

If Parliament passes an act which contradicts a previous Act passed by earlier Parliament - if clear that it is inconsistent then overrides

113
Q

What was established in Ellen Street Estates v Minister of Health?

A

Any inconsistencies with the previous act counts

114
Q

How did devolution affect parliamentary supremacy?

A

Reduced its powers, devolving them to Wales, NI and Scotland

115
Q

How did decolonisation affect parliamentary supremacy?

A

Acts of Independence reduced its powers over these countries

116
Q

What was the Act of Union and how does it affect parliamentary supremacy?

A

Specific preservations of Scottish legal system and church.
Cannot override these provisions
Therefore ‘born unfree’?

117
Q

What is the limits on implied repeal of statutes? (parliamentary supremacy)

A

A statute cannot be impliedly repealed if it is a constitutional statute

118
Q

What happened in Thoburn?

A

Defendants were charged with offences of not using weighing machines with metric units but had relied on a 1985 Act that had seemingly impliedly repealed the 1972 ECA. However, the ECA was a constitutional statute, so could not be impliedly repealed

119
Q

What is the test to identify a constitutional statute?

A
  1. A statute which contains a legal relationship between citizen and state in some general or overarching manner
  2. The statute must change the scope of fundamental rights
120
Q

Examples of constitutional statute?

A

Magna Carta, Bill of Rights, Human Rights Act, Devolution Acts

121
Q

What was established in the HS2 case?

A

That there is a hierarchy of constitutional statutes if they were to come in to disagreements

122
Q

How does EU law affect parliamentary supremacy?

A

It has a strong method of incorporation. UK should give priority to EU law where there is a conflict.

123
Q

Why may parliamentary supremacy be supreme over EU Law?

A

There is nothing preventing any government from expressly repealing the ECA

124
Q

What happened in Pickstone v Freemans?

A

There was a breach of the Equal Pay Directive. House of Lords adopted a purposive approach which departed from strict literal interpretation of UK regulation to comply with EU law

125
Q

What happened in Lister v Forth Dry Rock?

A

A breach of a directive affecting protection of workers in companies being transferred. House of Lords interpreted regulations contrary to clear literal meaning to be compatible with EU Law

126
Q

What was the Factortame case?

A

UK passed Merchant Shipping Boats Act in 1988 preventing fishing in British waters by those not British. Factortame company took this to courts, saying it was not compatible with TFEU. Found that it was not and the courts put a limit on an Act of Parliament

127
Q

What is important about incorporation of the HRA?

A

There is a weak method of incorporation. It wanted to provide a basis for judicial interpretation of legislation but not give power to the judiciary to strike down Acts of Parliament

128
Q

What is the manner and form debate?

A

Whether it is possible to bind a future Parliament as to the procedure to pass an act etc.

129
Q

What did the Parliament Acts of 1911 and 1949 do and how do they impact the manner and form debate?

A

They made it easier for the House of Commons to by-pass the House of Lords. House of Lords if after 2 years, then 1 year, disagreed they had to let it pass anyway

It was suggested if it is made easier to pass legislation, it can also be made harder

130
Q

What did the Scotland Act 2016 and Wales Act 2017 introduce to impact the manner and form debate.

A

Referendum is required to abolish the Scottish and Welsh parliaments - clearly they are bound by procedure

131
Q

What happened in the Trethowan case?

A

In Australia. Attempt to entrench Parliament by providing that the provisions could not be repealed unless they were approved by a popular referendum. Privy Council held that repeal of the act was invalid as referendum needed to take place

132
Q

What was the Canada Act?

A

Canada had to ????

133
Q

What were limits on the Trethowan case?

A

It is persuasive only as from Australia
Privy Council
NOT BINDING

134
Q

What is the European Commission? (3)

A
  1. Runs the EU day to day and takes actions when member states breach EU law
  2. Proposes new EU law
  3. Ensures countries abide by new EU law
135
Q

What is the Council of the European Union (The Council)? (3)

A
  1. With the European Parliament it is the main decision making body of the EU
  2. One government minister from each member state
  3. Passes new pieces of EU law
136
Q

What is the voting procedure in the Council of the European Union?

A
  • The qualifying majority voting system
  • In order for a decision to be passed, need to be a qualifying majority
  • At least 55% of member states (15/27)
  • Must represent 65% of the population
137
Q

What is the European Council?

A

Comprises of the Head of States

- Make key political decisions and establish policy guidelines

138
Q

What is the European Parliament?

A
  • All democratically elected representatives of the member states (MEPs)
  • Consider and discuss all proposed EU law
  • Vote in a simple majority
139
Q

.

A

.

140
Q

What is the European Court of Justice?

A
  • Highest court in the European Union
  • Supreme authority over all EU law
  • Interprets EU law and makes sure that it is applied in the same way in all member states
141
Q

What are the 3 things that the ECJ can do?

A
  1. Interprets law
  2. Can declare EU law invalid
  3. Sanctions EU institutions for not implementing
142
Q

What is IP completion day?

A

11pm on 31st December 2020. When all EU law came in to force - essentially a snapshot of EU law as it applied to the UK on completion day minus some changes

143
Q

What 3 things does a regulation/treaty need to be for it to have direct effect?

A
  1. Clear
  2. Precise
  3. Unconditional
144
Q

What is vertical direct effect?

A

This means can be enforced against the state - not private

145
Q

What is horizontal direct effect?

A

Can be enforced against private organisations

146
Q

What happened in Van Gend case?

A
  • Wanted to claim back a sum of money they paid in a customs duty to the Dutch government
  • Treaty article had direct vertical effect against the Dutch Government
147
Q

What happened in Defrenne v Sabena?

A

Female employees should be paid same as males - took action against private airline
Had horizontal direct effect

148
Q

What type of direct effect can treaties have?

A

Horizontal

Vertical

149
Q

What type of direct effect can regulations have?

A

Horizontal

Vertical

150
Q

What are directives?

A

These have to be implemented in to national legislation

Within 2 years

151
Q

What was established in Van Duyn?

A

Directives can have direct effect

152
Q

What is the test for directives having direct effect?

A
  1. Must be clear precise and unconditional

2. The deadline for implementation must have passed

153
Q

Can a directive have horizontal effect?

A

NO

154
Q

Cases for directives having vertical and not horizontal direct effect?

A

Marshall v Southampton Area Health Authority: worked for public authority, dismissed before retirement age
Faccini Dori: claim against private organisation was rejected

155
Q

When can a private company be considered for vertical effect (and statute and test (3))?

A 
If an emanation of the state
Foster v British Gas
1. Provides a public service under statutory duty
2. Under the control of the state
3. Has special powers
156
Q

What is EU-derived domestic legislation?

A

The laws that the UK has adopted to implement obligations under EU law

157
Q

What is direct EU legislation?

A

Any EU regulation in force before IP completion day

158
Q

What are directly effective rights?

A

This comprises of the rights and obligations arising from ECA before IP completion day

159
Q

What are the three limbs of EU retained law?

A
  1. EU derived legislation
  2. Direct EU legislation
  3. Directly effective rights
160
Q

Why are directly effective rights retained seemingly not logical?

A
  • Only those that have been recognised by CJEU or UK courts
  • Therefore there must have been a previous ruling
    The more obscure the directive, the more likely to be retained
161
Q

What exclusions have there been from EU law to retained EU law? (4)

A
  1. Freedom of movement of persons, goods and services
  2. The Charter of Fundamental Rights:
  3. No longer a right of action for failure to comply with general principle of EU law
  4. No longer possible to claim Francovich damages
162
Q

What is retained ‘principal’ EU legislation and retained ‘minor’ EU legislation? and the difference?

A 
Principal = regulations, etc.
Minor = any secondary legislation

Principal can only be amended or repealed by primary legislation Eg an Act of Parliament

Minor can be amended or repealed in the same way as domestic secondary legislation

163
Q

What is retained EU case law?

A

Any principles laid down by UK courts in relation to EU law before IP completion day
Any principles laid down by ECJ before IP completion day

164
Q

What has changed regarding EU case law?

A

Supreme Court may now depart from retained EU case law, when right to do so
Also ECJ decisions after IP completion day are no longer binding

165
Q

What inconsistencies does this have on case law in the future?

A

If ECJ overrides one of its previous decisions. That previous decision will be binding, but new case law will only be persuasive

166
Q

What happened with general principles of retained EU law?

A

These were not retained, unless recognised by EU case law before IP completion day

167
Q

What are 4 examples of general principles that were retained?

A
  1. Proportionality
  2. Equality
  3. Fundamental rights
  4. Subsidiarity
168
Q

What happened to Francovich damages after IP completion day?

A

Can no longer claim

169
Q

What can ministers do to deficiencies in retained EU law and when may they do this?

A

Can change them

  1. If have no practical application
  2. If functions that were carried out by the EU
170
Q

What is included in the Withdrawal Agreement (4)?

A

1 Citizen’s Rights

  1. Financial settlement
  2. Northern Ireland protocol
  3. Governance and dispute resolution
171
Q

What was the Trade and Cooperation Agreement?

A

A free trade agreement

  • Zero tariffs on goods
  • High levels of protection for the environment, climate change, tax and social rights
  • Effective competition law systems
172
Q

What part of the TFEU secures rights for workers?

A

Article 45

173
Q

What 2 parts are there to article 45 of the TFEU?

A
  1. Freedom of movement for workers shall be secured within the Union
  2. There will be no discrimination on nationality between workers in employment
174
Q

What 4 things does it article 45 TFEU cover?

A
  1. Accepting offers of employment
  2. Move freely within Member States for employment
  3. Stay in a Member State for employment
  4. Remain in the territory of a Member State for employment
175
Q

Who qualifies under Article 45?

A
  1. An EU national
  2. An EU migrant
  3. A worker
176
Q

What is the definition for a worker? (authority)

A

Lawrie Blum

  1. Performs a service for another
  2. Is under the control of that person
  3. Receives renumeration for doing so
177
Q

What was the Kempf case?

A

Part-time music teacher on benefits was a worker - as received renumeration

178
Q

What was the Steymann case?

A

Received renumeration for plumbing services in return for food. This counted as a worker

179
Q

What was the Bettray case?

A

Therapeutic work as a drug addict, got paid but main purpose was to help himself. Not effective as a worker

180
Q

Can you deny entry to a worker?

A

Yes if on grounds of public policy and public heath

- Security and threat to society

181
Q

What was the Astrid Proll v Entry Clearance Officer case?

A

Terrorist allowed entry as did not represent a current threat

182
Q

What is an example of direct discrimination?

A

A Belgian employee pays its employees who are Belgian nationals €5 than those who are non-Belgian nationals. This is directly discriminating against them.

183
Q

What is an example of indirect discrimination? (authority)

A

Allue v University of Venice: teacher of foreign languages could enter one year contracts vs indefinite for other subjects. This was not direct as Italian teachers would be under the same restrictions. However it was more likely that a foreign international would be teaching a foreign langauge

184
Q

What is Directive 2004/38? (3)

A
  1. Anyone can enter on production of valid identity card or passport
  2. Family members also have entry, but if not EU nationals then may be required to obtain a VISA
  3. May have a right of residence for three months, without being economically active
185
Q

When may you be able to stay longer than 3 months?

A
  • Worker
  • Self-employed
  • Self-sufficient with comprehensive sickness cover
  • Students with comprehensive sickness cover
186
Q

Who are included as family members?

A

1 Spouse/ Registered partner

  1. Durable relationship
  2. 21 or under dependents
  3. Direct ascending family members
  4. Direct family members of spoiuse
187
Q

Are divorcees included?

A

Spouse may stay in country if they have resided for three years, or have been awarded custody or access to children

188
Q

What is Regulation 492/2011?

A
  • Can take up a role with same priority of that of nationals of the state
  • Enjoy same social and tax advantages
189
Q

What is settled status?

A

Individual has right to live, work and remain in UK indefinitely

  • The holder can access public funds
  • Can leave the country for up to 5 years without losing their status
190
Q

What is pre-settled status?

A

Granted to those who have not yet lived in UK for 5 years
Once 5 years can apply for settled status
Can only leave country for 2 years at a time

191
Q

What countries make up the UK?

A

England
Scotland
Wales
NI

192
Q

What is a brief timeline on Scotland? (4)

A
  1. 1706-07 Acts of Union (Scotland have preserved legal and church systems)
  2. 1997 referendum on devolution - successful
  3. Scotland Act 1998 introduced which set up Scottish Parliament and devolved areas of law
  4. Independence referendum lost
193
Q

How many members of Scottish Parliament and what known as?

A

129 members known as MSPs

194
Q

What is the head of the Scottish Government called?

A

First Minister

195
Q

What did R v Miller suggest about the Sewell Convention?

A

It does not effect parliamentary supremacy - UK government had no obligation to seek Scottish acceptance

196
Q

What are devolved matters?

A
  • Health
  • Education
  • Civil and criminal law
  • Taxation (since 2016)
197
Q

What are reserved matters?

A
  • Constitution
  • Foreign policy
  • Defence
198
Q

What is a brief timeline on Wales? (2)

A
  1. 1998 Wales Act, created the Welsh Assembly

2. 2017 gave powers much like Scotland with taxation etc

199
Q

Who makes up the Senedd Cyrmu/Welsh Parliament?

A

60 MSs of which 40 are from Welsh constituencies

20 are from the 5 electoral regions of Wles

200
Q

Devolved and reserved?

A

Same as Scotland

201
Q

What is a brief timeline on Northern Ireland? (4)

A

1949 - Republic of Ireland break away
1970s - The troubles, IRA (Catholics) want a united Ireland and Protestants want to remain with the UK
1998 Good Friday Agreement - power sharing executive
1998 Northern Ireland Act

202
Q

What is the Northern Ireland executive?

A

Power-sharing agreement between different parties representing different parts of NI community
1. Nationalist
2. Unionist
3. Other
First Minister if from largest political party, deputy from second

203
Q

How would a Supreme Court become involved in devolved legislature? (3)

A
  1. Reference by a devolved or UK law officer (attorney-general)
  2. Through an appeal from certain higher courts
  3. Through a reference from certain appellate courts
204
Q

Example of law officer referring bill to Supreme Court?

A

Agricultural Sector Bill: suggested that aiming to restructure agricultural wages
This was not under farming but employment - however held that actually to do with agricultural industry so allowed

205
Q

Example of appeals from higher court?

A

Imperial Tobacco v Lord Advocate: Act in Scotland prohibited display of tobacco
Tobacco company appealed
However held that was achieving less smoking so allowed

206
Q

What is the Joint Ministerial Committee?

A

Members of all devolved states will considered devolved and non-devolved matters

207
Q

What are the two sub-committees of the JMC?

A
  • JMC Europe

- JMC EU negotiations

208
Q

What is exclusive cognisance for parliament?

A
  • Has the right to regulate its own rules and procedures and its own affairs
  • It can punish non-members if they interfere with procedures in Parliament
  • Once the court has decided the scope of Parliamentary privilege, it will not question it further

Law (4 decks)

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