EU Law

Question 1

Principles

Principle of Conferral

Answer 1

Art5(2) TEU
- The EU cannot give themselves additional power.

Question 2

Principles

Principle of Subsidiarity

Answer 2

Art5(3) TEU
- The EU shall only act where the shared goal is actually achievable.

Question 3

Principles

Principal of Proportionality

Answer 3

Art5(4) TEU
- The EU shall not take action that is not necessary for their goal.

Question 4

R(Miller) v Sec of State for Leaving the EU

Answer 4

INFO
-Art50 of TEU allowed MSs to leave the EU in accordance with their own laws.
- Govt said Art50 was in prerogative power of making treaties.
- SC disagreed, said exit from EU needed to be authorised by Parliament.

RULE
- UKG cannot use royal prerogative to make significat consitutional changes without explicit parliamentary approval.
- reinforces parliamentary soverignty.

Question 5

Primary Effect - definition

Answer 5

EU law takes priority over conflicting national law - where there is a conflict between national and EU, EU overrules and national is put aside.

Question 6

Direct Effect - definition

Answer 6

EU law can be directly enforced by individuals in natinoal court, there does not ned to be equivalent legislation in the country.

Question 7

UK in regards to Primacy and Direct Effect?

Answer 7

DUALIST CONSITUTION IN UK
1. UK has prerogative to create treaties, but this should not alter the law of the land - to incorporate international law, an act of Palriament is needed.
- Allister v Others 2023 UKSC

2. Individuals can rely on provisions of EU law in national court proceedings IF THEY ARE SUFFICIENTLY CLEAR.
   - Von Gend en Loos

Question 8

Parliamentary Sovereignty - definition

Answer 8

Parliament can make and unmake any law whatever and nobody may set these aside.

Question 9

European Communities Act

ECA - impact on direct effect and primacy.

Answer 9

DIRECT EFFECT
ECA s.2(1) - anything that has direct effect under EU law automatically becomes a binding part of UK law and can be enforced.
- if change in EU law, change in UK law too.

PRIMACY
s.2(4) - parliament legislates for the primacy of EU law.
- any legislation incompatible with Eu law is set aside.

Question 10

REUL + Withdrawal

Retained EU Law Act 2023 - what did it do to REUL?

Answer 10

REUL - takes EU laws writted by the end of 2020 and incorportaes them into UK law.

Made major changes to how retained EU law works and reduces EU law in the UK.

• s.3 - primacy of REUL was abolished, so can be changed if incompatible.

Question 11

REUL + Withdrawal

Retained EU Law Act 2023 - what did it do to ministerial powers?

Answer 11

1. ministers can restate REUL - put it into statutory instrument.
2. ministers can revoke or replace REUL.

Question 12

REUL + Withdrawal

Withdrawal Agreement - citizens rights?

Answer 12

1.guarantees continuing free movement rights for those exercising them at the end of the transition period.
2.those remaining in EU/UK should receive equal treatment.

Question 13

Rights and Liberties

R v Home Sec 2002

Answer 13

Courts will, if they can, interpret legislaiton ot be subject to the basic rights of the individual.
Parliament can expressly legislate against human rights, but if words are ambiguous they will be presumed to be adhering to the rights.

Discusses principle of legality - government actions must be authorised by law.

Question 14

Rights and Liberties/Judicial Review

Daly v Home Sec 2001

Answer 14

Courts decide whose interests within the decision-making process are more important - must weight up interests with rights.

Discusses principle of proportionality - used in judicial review to assess whether a law or policy balances interests.

Question 15

Rights and Liberties

Examples of well protected rights

Answer 15

Enitck v Carrington 1765 - property owenrship.
Beatty v Gillibanks 1882 - contract rights.
Habeas Corpus - right to liberty.

Question 16

Rights and Liberties

Examples of badly protected rights

Answer 16

Malone v MPC - privacy right.
AG v Guardian Newspapers - weak at protecting freedom of speech.

Question 17

ECHR

ECHR Rights list - 12

Answer 17

2 - right to life
3 - freedom from torture or degratding treatment
4 - freedom from slavery
5 - right to liberty
6 - right to fair trial
7 - freedom from retrospective criminal punishment
8 - right to privacy
9 - freedom of thought, conscience or religion.
10 - freedom of expression
11 - freedom of peaceful assembly
14 - freedom from discrimination
Protocol 1 Art 1 - right to property

Question 18

ECHR

Absolute rights

Answer 18

Cannot be breached, altered or adapated

Question 19

ECHR

Qualified rights + rules

which acts, criteria, and s.2 conditions

Answer 19

8-11
Can be restricted under certain circumstances.

For interference to be lawful, must be:
- prescribed by law,
- necessaru in a democratic society,
- meet reasons in s.2 of act.

s.2 conditions tend to be national security, public saefty, prevention of crime, protection of health.

Question 20

ECHR

[Qualified rights - proportionality]
Daly

Answer 20

Daly case - says necessary ina democratic society means it must be proportionate.

Question 21

ECHR

[Qualified Rights - proportionality]
Test for proportionality

Answer 21

Bank Mellat v Treasury 2013
decision or action will be considered proportionate if….
1. rational connection - reasoning within article.
2. least intrusive means - minimum impairment.
3. fair balance.

e.g. Simms, no rational connection between keeping order and no communication.

Question 22

ECHR

R(ADI) v Sec of State 2008

example

Answer 22

EXAMPLE OF COURTS DECIDING DECISION SHOULD REMAIN UNDISTURBED

• • Communications Act made blanket ban on political advertising on broadcast media, instead would make time for political parties specifically - ADI was not a political party so could not air.
• HL said ban was not disproportionate due to longevity, but good arguments against.

EXAMPLE OF COURTS DECIDING DECISION SHOULD REMAIN UNDISTURBED

Question 23

ECHR

Nicklinson v Ministry of Justice 2014

example

Answer 23

EXAMPLE OF COURTS DECIDED SOMOENE ELSE SHOULD DECIDE

• Was Suicide Act compatible with right to respect for private life?
• Argument was made that this was more for Parliament to decide in order to let them re-legislate on this.

Question 24

ECHR

Margin of Appreciation

Answer 24

National authorites have discretion when fulfilling obligation to ECHR - as long as they meet minimum standard.

Question 25

# HRA 1998 HRA - Legislative process

Answer 25

s.19 - a minister must beclare whether their new Bill is compatible with Convention rights - can say that it is not compatible and continue.

Question 26

# HRA 1998 HRA - Courts and Parliament ## Footnote info and case

Answer 26

s.3 - where possible courts must read legislation in a way that is compatible with ECHR rights. s.4 - if impossible, declare incompatibility Ghaisen and Godin-Mendoza 2004 - may require the courts to depart from the clear meaning that the legislation has in order for it to be compatible.

Question 27

# HRA 1998 HRA - Public Authorities

Answer 27

s.6 - it is unlawful for a public authority to act in a way which is incompatible with a convention right.

Question 28

# HRA 1998 HRA - ECtHR Link | info and case

Answer 28

s.2 - when dealing with ECHR, UK courts should take into account relevant ECtHR case law. Ullah v Special Adjudicator 2004 - should follow any clear and consistent case law of the ECtHR - as long as it does not contradict crucial aspects of UK law.

Question 29

# HRA 1998 HRA Controversy - European Problem | issue and solution

Answer 29

ISSUE - HRA includes European Human Rights Law, issues casued by right-wing Euroscepticism. SOLUTION - many jurisdictions have similar objects within their constitutions, e.g. Canda Charter of Rights and Freedoms or NZ Bill of Rights. - They will not be following these tules because of Europe.

Question 30

# HRA 1998 HRA Controversy - Sovereignty Problem | issue and solution

Answer 30

ISSUE - Belief that the UK should have total control of its own rules and should be able to do as we decide. SOLUTION - USA SC has an extreme level of supremacy - e.g. Dobbs case was able to fully override Roe v Wade abortion decision without intervention. - The HRA does not grant all-consuming power ot the courts in the way the USA does, UKSC has much less power.

Question 31

# HRA 1998 HRA Controversy - Judicial Supremacy | issue and solution

Answer 31

ISSUE - Shift in power to the courts in recent years. SOLUTION - parliament still has power. - Ghaiden v Godin-Mendoza said that courts should interpret legislation to be compatible with HRA even if that means changing the meaning - no examples of this being abused. - Many examples of Parliament making controversial decisions because the courts have recognised that it is appropriate to Parliament to make these decisions - e.g. ADI case with political broadcasts.

Question 32

# HRA 1998 HRA Controversy - Independent HRA Review

Answer 32

Commissioned by Govt in 2020 to assess HRA, found that no major reform/changes were needed.

Question 33

# Expression AG v Times Newspapers 1974

Answer 33

INFO - Distillers released thalidomide onto the market, damaged unborn children, knew the risk - Times wrote a story saying they knew more than they had said. - Back and forth legal proceedings - issue of interfering with legal case against company. RULE - Anything which has a substantial risk of serious interference with legal proceedings may justify an injunction preventing publication.

Question 34

# Expression AG v Guardian 1987 - Spycatcher | info and rule

Answer 34

INFO - Ex-MI5 published memoir with information - book was published abroad but blocked here except for illegal copies - UK Press was not allowed to write about it. - Courts said they could not do this as it was contrary to the benefit of the public. RULE - said this was a disproportionate interference with freedom of expression

Question 35

# Expression Reynolds v Sunday Times 2001 | info and rule

Answer 35

INFO - Sunday Times ran a story about ex-Taoiseach saying he misled the Parliament - he sued for libel. RULE - Court said that any restriction of freedom of expression must be established by a compelling justification and the means must be proportionate. - Brings it in line with how free speech is protected in ECHR.

Question 36

# Expression Official Secrets Act 1989

Answer 36

s.1 - makes it an offence for a member/former member of the secret intelligence services to disclose any information or document obtained through service (without authority).

Question 37

# Expression Public Order Act 1986

Answer 37

offence to stir up racial hatred - using threatening, abusive or insulting words or behaviour which are intended or likely to stir up racial hatred - LARGE SCOPE, CAN BE UNINTENTIONAL.

Question 38

# Expression Handyside v UK 1976

Answer 38

INFO - Little Red Schoolbook translation included sexual information - copies were seized under statute - this was upheld. RULE - Freedom of speech includes offensive, shocking or disturbing words - only a restriction on this when it is threatening or abusive as per Hate Crime Act.

Question 39

# Expression Campbell v MGN 2004

Answer 39

INFO - Naomi Cambell photos at AA meeting, said it breached right to privacy. RULE - there would be a right to privacy in situations where there is a reasonable expectation of privacy

Question 40

# Expression Bloomberg v ZXC 2022

Answer 40

- There is a reasonable expectation of privacy up until the moment you are charged with an offence.

Question 41

# Assembly Beatty v Gillibanks 1882

Answer 41

INFO - Salvation army case, local created opposition who marched at the same time. RULE - you cannot be stopped from acting lawfully, just because someone else will act unlawfully as a result. - UNLESS the unlawful behaviour was the natural consequence of your actions.

Question 42

# Assembly Redmond-Bate v DPP 2000

Answer 42

Exercising powers to prevent breach of the peace will be lawful only if the officer reasonably apprehends an imminent breach of the peace.