Legal services, EU law and public law Flashcards
(368 cards)
1
Q
What is a legal system?
A
The body of institutions that make, execute, and resolve disputes in relation to the laws of a state.
2
Q
What are the three main jurisdictions in the UK?
A
- England and Wales
- Scotland
- Northern Ireland
3
Q
What does ‘jurisdiction’ refer to in a legal context?
A
A political entity or geographical location where a particular law has application.
4
Q
What is the role of the Supreme Court of the United Kingdom?
A
It has an overarching appeal jurisdiction as the final civil court of appeal for all three jurisdictions.
5
Q
What type of legal system does England and Wales have?
A
Common law system.
6
Q
What is a key feature of a common law system?
A
It operates by looking at precedent (previous judicial rulings).
7
Q
What is the difference between common law and civil law systems?
A
Common law systems rely on judicial precedent, while civil law systems are codified and do not operate by precedent.
8
Q
What are the two categories of legislation?
A
- Primary legislation: statutes created directly by Parliament
- Secondary legislation: detailed instruments authorized by Parliament
9
Q
What is case law?
A
Laws made by judges by deciding cases in the courts under the doctrine of judicial precedent.
10
Q
What is ‘retained EU law’?
A
EU law as it applied in the UK at the end of the transition period on 31 December 2020.
11
Q
What does the term ‘burden of proof’ denote?
A
Who has the responsibility for meeting the standard of proof in a legal case.
12
Q
What is the standard of proof required in criminal cases?
A
Beyond reasonable doubt.
13
Q
What is the standard of proof required in civil cases?
A
On the balance of probabilities.
14
Q
What are ‘indictable offences’?
A
The most serious offences that must be tried in the Crown Court.
15
Q
What is the role of judges in the legal system?
A
To interpret legislation and adjudicate disputes based on the law.
16
Q
What is judicial independence?
A
The principle that judges must be impartial and independent from other branches of government.
17
Q
What does ‘security of tenure’ mean for judges?
A
Judges must be protected from arbitrary dismissal and can only be removed under specific conditions.
18
Q
What is the significance of the Constitutional Reform Act 2005?
A
It strengthened judicial independence and imposed a statutory duty on government ministers to uphold it.
19
Q
What are the two fundamental classifications of law?
A
- Public law
- Private law
20
Q
What is the difference between civil law and criminal law?
A
- Civil law: Covers legal transactions and disputes that are not criminal
- Criminal law: Involves sanctions for conduct against the law
21
Q
What are ‘either way offences’?
A
Intermediate offences that may be tried in either magistrates’ courts or the Crown Court.
22
Q
What is the term for the party bringing a civil claim?
A
Claimant or applicant.
23
Q
What is a trust in legal terms?
A
A legal device where someone can be the equitable owner of property while another holds legal title.
24
Q
What are examples of equitable remedies?
A
- Injunctions
- Specific performance
25
Fill in the blank: The law that English and Welsh lawyers use is that of _______.
[England and Wales]
26
True or False: The legal system of Scotland is a pure common law system.
False.
27
What type of offences are tried in magistrates' courts?
Summary offences.
28
What do judges in civil cases determine?
Liability and appropriate remedies.
29
What is the outcome of a criminal trial called?
Trial verdict.
30
What is the Crown Prosecution Service responsible for?
Bringing prosecutions against defendants in criminal cases.
31
What is judicial independence?
Judicial independence refers to the ability of judges to make decisions free from improper influence.
32
Name some examples of improper influence on judicial functions.
* Improper pressure by the executive or legislature
* Influence from individual litigants
* Pressure from pressure groups
* Media influence
* Self-interest
* Influence from other judges, especially those with seniority
33
What did the Constitutional Reform Act 2005 achieve in the UK?
* Imposed a statutory duty on government ministers to uphold judicial independence
* Created a UK Supreme Court
* Replaced the Lord Chancellor with the Lord or Lady Chief Justice
* Established an independent Judicial Appointments Commission (JAC)
34
Who is responsible for defending the independence of the judiciary according to the Constitutional Reform Act 2005?
The Lord Chancellor is under a duty to defend the judiciary's independence.
35
What is the function of the Judicial Appointments Commission (JAC)?
The JAC oversees the judicial appointment process to ensure transparency and diversity.
36
How many members are on the Judicial Appointments Commission (JAC)?
The JAC has 15 members.
37
What is the process for appointing Circuit judges?
The JAC administers a competitive process and makes a recommendation to the Lord Chancellor and the Lord or Lady Chief Justice.
38
True or False: The JAC is involved in the appointment of Supreme Court justices.
False.
39
What is the composition of the selection commission for Supreme Court justices?
* President of the Supreme Court (unless the role under consideration is the President)
* A senior UK judge nominated by the UK Supreme Court President
* Members from the JAC and its Scottish and Northern Irish equivalents (two must be non-legally qualified)
40
What does it mean for a court to be a 'court of record'?
A court of record means its rulings are usually reported and serve as precedents for future cases.
41
What distinguishes superior courts from inferior courts?
Superior courts have unlimited jurisdiction and deal with complex or higher value cases, while inferior courts handle lower value and less complex cases.
42
What is the difference between first instance and appellate courts?
* First instance courts are the initial courts to hear a matter
* Appellate courts hear appeals from lower courts
43
Which courts generally serve as appellate courts?
The Supreme Court and the Court of Appeal.
44
Fill in the blank: The _____ Court hears appeals from within the Family Court.
Family Court
45
Where do criminal trials for lesser offences take place?
In the magistrates' court.
46
What is an appeal by way of 'case stated'?
It is an appeal on a question of law to a specialist court within the King's Bench Division of the High Court.
47
What courts have jurisdiction over civil appeals?
* High Court
* Court of Appeal (Civil Division)
* Supreme Court
48
What is the purpose of the statutory duty under the Constitutional Reform Act 2005 for the JAC?
To encourage diversity in judicial appointments.
49
What ongoing issue does the judiciary face regarding representation?
Women and members of minoritised ethnic communities remain poorly represented at higher levels of the judiciary.
50
What is the initial court where a hearing may begin?
An inferior court
## Footnote
Examples include county courts for low-value disputes.
51
What is the Supreme Court's role in the UK judicial system?
It is the most senior court, hearing civil and criminal matters and serving as the final court of appeal for England and Wales.
52
What type of cases does the Supreme Court hear?
Appeals on points of law involving matters of public importance and/or constitutional significance.
53
From which court do most appeals to the Supreme Court originate?
The Court of Appeal.
54
What is 'leapfrogging' in the context of civil appeals?
A procedure allowing civil appeals to proceed straight from the High Court to the Supreme Court.
55
How many justices can sit on the Supreme Court for an appeal?
A maximum of 12 justices.
56
What are the two divisions of the Court of Appeal?
Civil Division and Criminal Division.
57
What does the Civil Division of the Court of Appeal handle?
Appeals from the High Court and some tribunals, as well as applications for leave to appeal.
58
What is the maximum number of judges in the Court of Appeal?
39 judges.
59
What types of cases does the High Court primarily deal with?
Civil cases, with some criminal appeals.
60
What divisions make up the High Court?
King's Bench Division, Chancery Division, Family Division.
61
What is the primary focus of the King's Bench Division?
Higher value/greater complexity contract and tort claims.
62
What does the Chancery Division handle?
Cases relating to land, wills, trusts, and bankruptcy.
63
When was the Family Court established?
In 2014.
64
What is the main jurisdiction of the Crown Court?
Criminal cases.
65
What is the role of magistrates' courts?
To handle the starting point for all criminal cases and some civil work.
66
What type of judges preside over the Crown Court?
Circuit judges and recorders.
67
What is the function of tribunals?
To deal with specific areas of law, often less formally than courts.
68
What is the First-tier Tribunal composed of?
Seven chambers dealing with discrete areas of public decision-making.
69
What does the Immigration and Asylum Chamber handle?
Appeals against Home Office decisions on immigration and asylum matters.
70
What is the role of the Upper Tribunal?
To handle appeals from the First-tier Tribunal and certain judicial reviews.
71
What is the Privy Council's historical significance?
It was created as the final court of appeal for the British Empire.
72
Are rulings from the Privy Council binding on courts in England and Wales?
False.
73
What is the maximum number of judges that usually sit on an appeal in the Supreme Court?
Five or seven.
74
What was the House of Lords' role prior to the Supreme Court?
It was the most senior court in the hierarchy.
75
What does the Family Division of the High Court do?
Hears appeals from the Family Court and complex family matters.
76
Fill in the blank: The King's Bench Division includes the _______ Court.
Administrative
77
What are the judges in the High Court referred to as?
Mr or Ms Justice [Name].
78
What is the primary function of the Administrative Court?
To hear applications for judicial review.
79
What is the main jurisdiction of the Family Court?
Most family matters except those deemed too complex.
80
What is the significance of the Family Proceedings Courts?
They were abolished when the Family Court was created.
81
What is the difference between a circuit judge and a district judge?
Circuit judges handle more complex cases, while district judges handle less complex cases.
82
True or False: The Chancery Division also hears criminal cases.
False.
83
What is the primary focus of the General Regulatory Chamber?
Handles appeals from various regulatory bodies.
84
What does the Tax Chamber deal with?
Appeals against decisions of HM Revenue and Customs.
85
What is the role of the Courts Martial Appeal Court?
Hears appeals from service courts in relation to military law.
86
What does it mean for a court in the domestic hierarchy to be referred to as 'persuasive'?
It means that a court is very likely to choose to follow a precedent from the Privy Council.
87
What is the residual jurisdiction of the Judicial Committee of the Privy Council over domestic appeals?
It has a very small residual jurisdiction over domestic appeals from niche courts outside the main hierarchy of England and Wales.
88
Name a court that is of historical significance but has not sat for many years.
The High Court of Chivalry.
89
What type of law does the Judicial Committee of the Privy Council hear appeals within?
Ecclesiastical law.
90
From which ecclesiastical courts does the Privy Council hear appeals?
The ecclesiastical courts of the Archdioceses of Canterbury and York.
91
What does the Privy Council adjudicate regarding the House of Commons Disqualification Act 1974?
It makes determinations as to who is entitled to sit as a member of Parliament under that Act.
92
Fill in the blank: The Privy Council hears appeals against schemes of the _______.
Church Commissioners of the Church of England.
93
True or False: The Privy Council has a significant role in the domestic appeal system of England and Wales.
False.
94
What is the European Court of Human Rights?
An international court of the Council of Europe located in Strasbourg that adjudicates on the application of the ECHR after domestic appeal avenues have been exhausted.
## Footnote
The rulings of the European Court of Human Rights are significant but not directly binding on domestic law.
95
What are the rulings of the European Court of Human Rights since the Human Rights Act 1998?
Rulings may be cited and can acquire domestic precedent value if relied on by a domestic court.
## Footnote
This marked a change in how Convention rights could be pleaded in domestic courts.
96
What is the Court of Justice of the European Union (CJEU)?
The judicial branch of the EU based in Luxembourg and the final arbiter of EU law.
## Footnote
Decisions of the CJEU were binding on domestic courts while the UK was a member of the EU.
97
What was the effect of Brexit legislation on the CJEU's decisions?
The principle of CJEU decisions being binding on domestic courts was repealed at the end of the transition period on 31 December 2020.
98
What is the Northern Ireland Protocol?
An agreement that retained the jurisdiction of the CJEU in overseeing the application of EU law in Northern Ireland post-Brexit.
## Footnote
This was a subject of controversy during Brexit negotiations.
99
What role does the CJEU have under the Windsor Framework of February 2023?
The CJEU retains an oversight role under the Northern Ireland Protocol where EU law still applies.
100
What is meant by 'right of audience' in the legal profession?
The right to appear before and address a court, including calling and examining witnesses.
101
Who traditionally made up the legal profession in England and Wales?
Solicitors and barristers.
## Footnote
The legal profession also includes judges, paralegals, academic lawyers, and others.
102
How are solicitors and barristers regulated?
Solicitors are regulated by the Solicitors Regulation Authority and barristers by the Bar Standards Board.
103
What major change occurred for solicitors regarding rights of audience?
Solicitors gained rights of audience in superior courts through training and assessment following the Courts and Legal Services Act 1990.
104
What did the Access to Justice Act 1999 change?
It altered how the Law Society regulates the granting of higher rights of audience to solicitors.
105
What did the Legal Services Act 2007 introduce?
Significant changes to the legal profession, allowing both solicitors and barristers to perform statutorily defined areas of work including litigation.
## Footnote
It preserved and extended rights under the Courts and Legal Services Act 1990.
106
What is the definition of 'reserved legal activities'?
Particular activities that include a right of audience as defined under the Legal Services Act 2007.
107
What is the doctrine of precedent?
The principle that legal principles established by higher courts should be followed by lower courts in similar cases.
108
What are binding and persuasive precedents?
Binding precedents must be followed by later courts, while persuasive precedents may be considered but are not obligatory.
109
What does 'stare decisis' mean?
The doctrine of binding precedent, translating to 'stand by what has been decided'.
110
What factors determine whether a precedent is binding?
* The court that decided the precedent
* The form of the precedent
* Similarity of circumstances to the case at hand
111
What is the ratio decidendi?
The legal principle or proposition of law relied upon by judges to reach their decision, which may be binding as precedent.
112
What is obiter dicta?
Statements in a judgment that are not binding but may be persuasive in future cases.
113
What are the key parts of a judgment?
* Ratio decidendi
* Obiter dictum
* Decision
* Material facts
114
What is vertical precedent?
The concept that rulings from higher courts bind lower courts, provided the ruling is ratio and similar to the case at hand.
115
What does horizontal precedent determine?
Whether a court is bound by its own previous ratios.
116
What governs the Supreme Court in relation to judicial precedent?
The Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
## Footnote
This statement allows the court to depart from its previous rulings when deemed right.
117
What is the general practice of the Supreme Court regarding its previous rulings?
Generally considers itself bound by its own previous rulings but reserves the right to depart from them
## Footnote
The power is used to develop the law or correct it when outdated.
118
What case governs the Court of Appeal's binding nature on its own previous ratios?
Young v Bristol Aeroplane Co Ltd [1944] KB 718
## Footnote
This case outlines conditions under which the Court of Appeal may depart from its previous ratios.
119
Under what conditions can the Court of Appeal choose which precedent to follow?
When there are two or more conflicting previous ratios or when there is a later conflicting ruling from the House of Lords or Supreme Court
## Footnote
It may also occur if the previous ratio was decided 'per incuriam'.
120
What does 'per incuriam' mean in the context of court precedents?
Decided in ignorance, failing to take account of relevant law
## Footnote
This means the precedent ratio itself is considered faulty.
121
How does the Court of Appeal treat decisions from the Privy Council?
Not bound by them but likely to follow a later conflicting ruling of the Privy Council
## Footnote
Privy Council decisions are persuasive to courts in England and Wales.
122
What happens when the Supreme Court makes a unanimous obiter statement regarding a Court of Appeal precedent?
The Court of Appeal will follow the Supreme Court's instruction to disregard its own previous precedent
## Footnote
This shows the influence of the Supreme Court on lower courts.
123
What is the approach of the Court of Appeal Criminal Division regarding the Young v Bristol Aeroplane rules?
The rules are followed less rigidly
## Footnote
This flexibility is justified due to the potential impact on individual liberty in criminal cases.
124
What is the High Court's general practice when hearing cases at first instance?
Tends to follow its own previous precedents but is not bound to do so
## Footnote
This allows for some flexibility in legal interpretation.
125
What principle does the High Court follow when hearing appeals?
Subject to the same rules as the Court of Appeal under the Young v Bristol Aeroplane principle
## Footnote
This ensures consistency in appellate decisions.
126
What is the precedent value of rulings from the Crown Court, county courts, and magistrates’ courts?
Do not have precedent value and do not bind themselves
## Footnote
This means their decisions cannot be used as binding authority in future cases.
127
What does 'affirmed' mean in the context of appeal terms?
The appeal court agrees and confirms the judgment of the lower court
## Footnote
This results in the dismissal of the appeal.
128
What does 'reversed' mean in appeal terminology?
The appeal court disagrees and overturns the judgment of the lower court
## Footnote
This allows the appeal to proceed.
129
What are binding precedents?
Where a court is bound by a precedent (it is ratio from a binding court in the hierarchy)
## Footnote
The precedent must be applied if materially similar.
130
What are non-binding precedents?
Where a court is not bound by a ratio from a lower court and can approve or disapprove it
## Footnote
Disapproved means weaker precedent value; overruled means extinguished as a precedent.
131
How are the terms 'followed' or 'not followed' used in legal context?
As looser alternatives to denote how a court handles obiter dicta
## Footnote
This reflects the flexibility in applying legal reasoning.
132
What are the two main types of legislation?
Primary and secondary legislation
133
What is primary legislation?
Acts of Parliament, also called statutes
134
What are Bills in the context of legislation?
Proposed laws being considered in Parliament before being passed
135
What distinguishes government Bills from private members' Bills?
Government Bills are part of the executive's legislative programme; private members' Bills are introduced by MPs outside government
136
What is the role of government Bills in Parliament?
They often fulfill manifesto promises and usually pass when the government has a majority
137
What are the three types of private members' Bills in the House of Commons?
* Ballot Bills
* Ten-minute rule Bills
* Presentation Bills
138
What is a public Bill?
A Bill applicable throughout the jurisdiction
139
What is a private Bill?
A Bill applicable only to a local area or particular people
140
What are hybrid Bills?
Bills that have both public and private elements
141
What is the first stage in the passage of a Bill?
First reading
142
What occurs during the second reading of a Bill?
The Bill is debated in principle and must receive majority support to continue
143
What happens during the committee stage of a Bill?
The Bill is scrutinised in detail and amendments are considered
144
What is the purpose of the report stage?
The committee reports back on the Bill and further amendments may be made
145
What is the third reading of a Bill?
The final stage in the House where MPs can view the final amended version of the Bill
146
What is a Money Bill?
A public Bill that deals with budget or finance-related issues, originating in the House of Commons
147
What is 'ping pong' in the legislative process?
When a Bill goes back and forth between the two Houses on final amendments
148
What is Royal Assent?
The approval by the monarch for a Bill to become an Act of Parliament
149
When does an Act of Parliament come into force?
On the date of Royal Assent unless specified otherwise in the Act
150
What is a commencement section in an Act?
Specifies when the Act or specific parts come into legal effect
151
What does the main body of an Act typically include?
Numbered sections and possibly parts for specific issues
152
What are intrinsic aids in statutory interpretation?
Interpretation aids found within the statute itself
153
What are extrinsic aids in statutory interpretation?
Interpretation aids found outside the statute, such as dictionaries and Interpretation Acts
154
What does the literal rule of statutory interpretation state?
Words should be given their plain, ordinary, and natural meaning
155
What is the golden rule in statutory interpretation?
The literal meaning should be followed unless it produces an inconsistency or absurdity
156
What does the mischief rule focus on?
Interpreting legislation in light of the law that existed before it and the problem it aimed to address
157
What is the purposive approach in statutory interpretation?
Interpreting legislation to give effect to its purpose
158
What are some presumptions made by courts regarding Parliament's intention?
* Not to alter common law without express terms
* Not to legislate retrospectively without express terms
* Not to deprive of liberty or property without express terms
* Not to oust the jurisdiction of the court without express terms
159
What is the significance of the case Pepper v Hart?
Judges may look at Hansard to resolve ambiguity regarding Parliament's intention
160
What is the rule 'Expressio unius est exclusio alterius'?
To say one thing is to exclude the others
161
What does 'Noscitur a sociis' mean?
A word's meaning can be constructed from the surrounding words and context
162
What does 'noscitur a sociis' mean?
It means to be 'known by the company it keeps' and refers to interpreting a word's meaning based on surrounding words and context.
## Footnote
Example: The Factories Act 1961's definition of 'floors' excludes those used solely for storage.
163
What is the meaning of 'ejusdem generis'?
'Of the same type'; used for interpreting general words in legal contexts.
## Footnote
Example: In the Vagrancy Act 1824, 'other offensive weapons' were interpreted to not include a piece of broken glass.
164
What does 'in pari materia' signify?
'Upon the same matter or subject'; it refers to resolving ambiguities in a statute by considering related statutes.
## Footnote
Example: A denied asylum claim based on previous rejections under earlier legislation.
165
Who can repeal primary legislation?
Only Parliament can repeal primary legislation, as Acts of Parliament cannot be set aside by any other body.
## Footnote
The Human Rights Act 1998 has a remedial order procedure that requires parliamentary approval.
166
What does 'repeal' denote in legal terms?
The removal of an Act or section, which then has no further legal effect.
167
What is the practice regarding new Acts and old laws?
New Acts generally expressly repeal conflicting old laws, but if they do not, the doctrine of implied repeal applies.
## Footnote
This doctrine states that the most recent Act takes precedence.
168
What is secondary legislation?
Legislation not made directly by Parliament, but by ministers or other bodies using powers created by primary legislation.
169
What are statutory instruments?
The most common form of secondary legislation, including regulations and orders that provide detailed rules beyond what is practical in an Act of Parliament.
170
What is the role of the executive in secondary legislation?
The executive (usually government ministers) enacts secondary legislation under authority from Parliament.
171
What happens to the powers of statutory instruments following devolution?
Powers to make statutory instruments were transferred to the Scottish Parliament and the Synedd Cymru in Northern Ireland.
172
Fill in the blank: Secondary legislation is also known as _______.
[delegated legislation or subordinate legislation]
173
What is the role of the minister in the creation of statutory instruments?
Members of the civil service draft the necessary rules on the minister’s behalf.
174
What is a statutory instrument?
A form of secondary legislation presented to Parliament with an explanatory note.
175
What are the two procedures for implementing statutory instruments?
* Affirmative resolution procedure
* Negative resolution procedure
176
What does affirmative resolution require?
Parliament must approve the statutory instrument before it can come into force.
177
What happens during the negative resolution procedure?
Implementation is delayed for a specified period (usually 40 days) during which Parliament may annul it.
178
Under what condition does a statutory instrument become law without further parliamentary control?
When laid before Parliament without any further requirements.
179
How can statutory instruments be modified after they are enacted?
They can be repealed or amended by subsequent primary or secondary legislation.
180
What is the key difference between primary and secondary legislation regarding judicial scrutiny?
Secondary legislation is subject to scrutiny by the courts and judicial review.
181
What is the trend regarding the volume of statutory instruments compared to statutes?
The amount of statutory instruments vastly outnumbers the statutes passed in any year.
182
What is a significant advantage of secondary legislation?
It is more efficient than the process of passing a statute and can be altered more quickly.
183
What is a disadvantage of secondary legislation?
It is not subject to the same level of scrutiny as primary legislation.
184
What is Welsh secondary legislation also known as?
Subordinate legislation or delegated legislation.
185
What types of documents are included in subordinate legislation?
* Orders
* Regulations
* Rules
* Schemes
* Statutory guidance
* Local orders
186
What does subordinate legislation derive its authority from?
It is subordinate to primary legislation, such as Acts of Parliament or Acts of Senedd Cymru.
187
Who typically has the power to make subordinate legislation in Wales?
Welsh Ministers, the Secretary of State, or other designated bodies.
188
What is the requirement of the negative procedure in Welsh subordinate legislation?
It must be laid before Senedd Cymru at least 21 days before it comes into effect.
189
What must happen for subordinate legislation to take effect under the affirmative procedure?
It must be formally approved by Senedd Cymru.
190
What is a 'super-affirmative' procedure?
A requirement for specific procedural steps, such as consulting specific persons before submission.
191
What is required when subordinate legislation is made jointly by Welsh and UK Ministers?
The statutory instrument must be laid before both Senedd Cymru and the UK Parliament.
192
Is there any subordinate legislation without a prescribed formal procedure?
Yes, some only require laying before Senedd Cymru.
193
What is parliamentary sovereignty?
A key concept of constitutional law where the legislative body has absolute sovereignty, supreme to all other governmental institutions.
194
What are the three main elements of parliamentary sovereignty?
* Parliament is omnicompetent
* No one, including the courts, can override Parliament
* No Parliament can bind its successor or be bound by its predecessors.
195
Define the legal definition of parliamentary sovereignty.
A legal rule governing the relationship between the judiciary and the legislature, stating courts must apply legislation made by Parliament.
196
Define the political definition of parliamentary sovereignty.
Parliament may not bind its successor, and no Parliament is bound by acts of its predecessors, limiting legislative supremacy.
197
How does the UK's constitution differ from codified constitutions?
The UK does not have a single codified constitution; it consists of a complex combination of legislation, case law, and conventions.
198
What is the royal prerogative?
The residual arbitrary power retained by the monarch, exercised by or on behalf of the government of the day.
199
List some examples of royal prerogative powers.
* Summoning, opening, and proroguing Parliament
* Appointments to state offices
* Foreign affairs
* Defence
* Emergency powers
200
What is the significance of constitutional conventions in the UK?
They are non-legally binding rules that govern behavior and help make the constitution work, being flexible and adaptable over time.
201
What is one of the main aims of devolution in the UK?
To bring government closer to the people and make government more representative.
202
Fill in the blank: The UK’s constitution is a _______ democracy.
[parliamentary]
203
What is the relationship between Parliament and the government in the UK?
Parliament is supreme, while the government is answerable to Parliament and accountable through the courts.
204
What are the devolution Acts designed to do?
Transfer certain legislative and executive powers from the Westminster Parliament to regional assemblies in Scotland, Wales, and Northern Ireland.
205
True or False: The UK Supreme Court can rule on the constitutionality of actions taken by Parliament.
False
206
What is the Government of Wales Act 1998 notable for?
It created the National Assembly for Wales with powers to create secondary legislation in various areas.
207
What changes did the Government of Wales Act 2006 implement?
It transferred more powers to the National Assembly, allowing it to pass legislation known as Assembly Measures and created the Welsh Government.
208
What powers were devolved to the Scottish Parliament by the Scotland Act 1998?
* Health and social work
* Education
* Local government
* Justice and policing
* Economic development
209
What unique powers does the Northern Ireland Assembly possess?
* Authority over pensions
* Justice and policing
* Firearms
* Financial services
* Broadcasting
210
What is one characteristic of the devolution system in the UK?
It is asymmetric, with different devolved assemblies having varying degrees of legislative power.
211
What role does constitutional convention play regarding the monarch's Royal Assent?
By convention, the monarch gives Royal Assent to legislation passed by both Houses of Parliament.
212
What does it mean that Parliament is omnicompetent?
Parliament can make or unmake any law relating to anything.
213
What is the impact of devolution on parliamentary sovereignty?
Devolution creates practical constraints on the exercise of parliamentary sovereignty by the Westminster Parliament.
214
What is the significance of the principle that no Parliament can bind its successor?
It ensures that every Parliament is sovereign in its own right during its lifetime.
215
What Act allowed most universities created since 1992 to be established?
Further and Higher Education Act 1992
216
What are prerogative powers in the context of the UK constitution?
Flexible powers that are uncodified and not always clearly defined
217
In a conflict between prerogative powers and statutes, which prevails?
Statutes
218
What case established that statutes will prevail over prerogative powers?
Attorney-General v De Keyser's Royal Hotel Ltd [1920] AC 508
219
How do prerogative powers affect the constitution compared to Bills?
They can be exercised more quickly and easily
220
Are prerogative powers subject to judicial review?
Yes
221
What case involved the Supreme Court judicially reviewing a Prime Minister's decision to prorogue Parliament?
R (on the application of Miller) v Prime Minister [2020] AC 373
222
What did the Supreme Court rule regarding the use of prerogative powers to withdraw from treaties?
Parliament must authorize it through passing legislation
223
What is the Crown's obligation regarding the advice of the government?
The Crown must accept and act on the advice of the government
224
Who is the Prime Minister in relation to the House of Commons?
The leader of the party with an absolute majority of seats
225
What is required for the Crown to grant Royal Assent?
All legislation must receive Royal Assent
226
Is there a law requiring the appointment of a Prime Minister?
No, it is a creation of convention
227
What does parliamentary privilege provide for Members of both Houses?
Certain legal immunities to perform their duties without outside interference
228
What does parliamentary privilege protect members from?
Legal consequences of statements made in Parliament
229
Does parliamentary privilege extend to issues related to criminal offences?
No
230
What can a special House committee do if a member breaches rights and privileges?
Suspend or expel the member from the House
231
What does the doctrine of parliamentary supremacy/sovereignty state?
Parliament is supreme to make or unmake any laws
232
What powers do devolved governments have?
Some power to create their own laws
233
What are constitutional conventions?
Non-legal and non-enforceable rules that are key sources of the British constitution
234
Who currently exercises the royal prerogative?
Government ministers or the executive branch of government
235
What is the purpose of parliamentary privilege?
To support members of the legislature in the unfettered operation of their duties
236
What is the definition of 'the rule of law' according to Lord Bingham?
The principle that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.
237
What are the three key principles of the rule of law according to A V Dicey?
* No one is lawfully punishable except for a breach of law
* No one is above the law
* The courts play a key role in upholding and enforcing the rights of individuals.
238
What is a fundamental requirement for the effective operation of the rule of law in a democratic society?
The independence of the judiciary.
239
What does the doctrine of separation of powers entail?
The running of the state is divided into three separate branches: an executive, a legislature, and a judiciary.
240
What is the purpose of the checks and balances system in the separation of powers?
To prevent any abuse of power by any one branch.
241
Which constitution is a classic example of clearly delineated branches with checks and balances?
The United States constitution.
242
How does the separation of powers operate in the UK compared to the United States?
In the UK, Parliament is not subject to the same kind of scrutiny as in the US; it is subject to the scrutiny of the people through elections.
243
What are the three branches of state?
* Executive
* Legislature
* Judiciary.
244
What is the role of the executive branch in the state?
To formulate policy and be responsible for its implementation.
245
What is the composition of the legislature in the UK?
The House of Commons and the House of Lords, making a bicameral Parliament.
246
What is the primary function of the judiciary?
To adjudicate upon issues between state institutions, between state and individuals, and between individuals.
247
Are the legislature and executive strictly separate in the UK parliamentary system?
No, members of the government are also members of the legislature.
248
What is the significance of Prime Minister's Questions in the UK?
It provides a platform for regular scrutiny of government ministers by Parliament.
249
What is judicial review?
The process by which judges scrutinise the lawfulness of the actions of public bodies and government ministers.
250
What protections do judges have to maintain their independence?
* Judges cannot be arbitrarily dismissed
* Judges are salaried.
251
What significant reform did the Constitutional Reform Act 2005 bring to the separation of powers?
It separated the functions of the Lord Chancellor into distinct roles.
252
What is primary legislation?
Acts of Parliament.
253
What is secondary legislation generally referring to?
Statutory instruments.
254
Who typically introduces most Senedd Bills?
The Welsh Government.
255
What must Senedd Bills comply with according to the Government of Wales Act 2006?
They must comply with the Act, including the European Convention on Human Rights and European Union law.
256
What is required for a Senedd Bill to become law?
It must receive Royal Assent from His Majesty.
257
What does public order represent?
The notion that citizens behave according to certain social shared norms of behaviour and values.
258
What are public order offences?
Acts that breach social norms and interfere with the operation of society.
259
What is the tension in public order law?
The balance between maintaining public order and the freedom to protest.
260
Which article protects the freedom to protest in a democratic society?
Article 11 of the European Convention on Human Rights.
261
What is required for lawful processions?
Advance notice to the police, including time, date, and route.
262
What is the consequence of failing to give notice for a procession?
It is a summary offence under Public Order Act 1986 s 11.
263
Under what conditions can police impose conditions on a procession?
* Serious damage to property or disruption to community life
* Noise causing disruption to nearby organizations
* Intimidation of others
264
What constitutes serious disruption to the life of the community?
* Hindrance to everyday activities
* Delays to time-sensitive deliveries
* Prevention of access to essential goods and services
265
What is the maximum duration for which a local authority can ban public processions?
Up to 3 months.
266
What defines a public assembly under the Public Order Act 1986?
An assembly of two or more people in a public place, wholly or partly open to the air.
267
What section contains police powers to regulate public assemblies?
Section 14 of the Public Order Act 1986.
268
What are the conditions under which a senior police officer can impose conditions on an assembly?
* Serious public disorder or damage
* Noise disruption to nearby organizations
* Intimidation of others
269
What does the Public Order Act 2023 extend?
Powers to police officers of the British Transport Police and the Ministry of Defence police.
270
What specific offences does the Public Order Act 2023 create?
* Locking on
* Tunnelling
* Obstruction of major transport works
* Interference with national infrastructure
271
What is defined as a breach of the peace?
Harm done or likely to be done to a person or property, or genuine fear of such harm.
272
Is breach of the peace a criminal offence?
No, but police have a common law power of arrest to prevent it.
273
What can a magistrate do in cases of breach of the peace?
Bind the person over to keep the peace, which may involve a sum of money.
274
What happens if a person refuses to be bound over?
It can result in imprisonment.
275
What is judicial review?
Judicial review is the mechanism by which the courts scrutinise the actions of the executive and hold it to account.
276
What is the supervisory function of the judiciary?
The supervisory function involves the courts exercising jurisdiction over the legality of decisions made by public authorities.
277
Can judicial review be used to challenge decisions simply because someone dislikes them?
No, judicial review cannot be used to challenge decisions solely based on personal dislike.
278
What does judicial review assess?
Judicial review assesses the process by which a decision was taken, not the correctness of the decision.
279
What is the significance of judicial review in a constitutional democracy?
Judicial review is essential for ensuring the rule of law and accountability of public authorities.
280
Which court typically handles judicial review at first instance?
The Administrative Court within the King’s Bench Division of the High Court.
281
Who can be subject to judicial review?
Persons or bodies exercising public law functions, including government ministers, courts, police, and local authorities.
282
Can private organizations be subject to judicial review?
Yes, if they exercise public functions.
283
What type of legislation can be challenged by judicial review?
Secondary legislation can be challenged, while primary legislation cannot.
284
What must an applicant demonstrate to have standing in a judicial review case?
The applicant must be affected by the decision or belong to an organization with sufficient interest.
285
What is an ouster clause?
A legal provision that excludes the availability of judicial review.
286
What are the time limits for bringing a judicial review claim regarding planning decisions?
The time limit is 6 weeks.
287
What is the general time limit for other judicial review claims?
Actions must be begun promptly, generally within 3 months of the decision.
288
What types of remedies can be sought in judicial review?
* Quashing order
* Suspended quashing order
* Mandatory order
* Prohibiting order
* Declarations
* Damages
* Declaration of incompatibility
289
What is a quashing order?
An order that nullifies the challenged decision, requiring the decision-maker to remake it.
290
What is a suspended quashing order?
An order that allows a decision to be suspended to give the body an opportunity to remedy the situation.
291
What does a mandatory order require?
It requires the defendant to fulfill a duty required by law.
292
What is the purpose of a prohibiting order?
To prevent an action or decision that has not yet been taken.
293
What are declarations in judicial review?
Statements clarifying a piece of law made by a High Court judge.
294
Under what conditions can damages be awarded in judicial review?
Damages can only be awarded in addition to another remedy and are rare.
295
What is a declaration of incompatibility?
A declaration made under the Human Rights Act 1998 when legislation is found incompatible with human rights principles.
296
What is illegality in the context of judicial review?
Illegality refers to decisions made beyond legal authority or in breach of granted authority.
297
What does 'ultra vires' mean?
It means acting beyond the powers granted.
298
What is irrationality in judicial review?
Irrationality refers to a decision that is outside the reasonable range of decisions any body could make.
299
What is procedural impropriety?
Failure to conduct decision-making and proceedings appropriately.
300
What does 'natural justice' encompass?
* The right to a fair hearing
* The rule against bias
301
What is the 'rule against bias'?
It prohibits someone from being a judge in their own cause, ensuring impartiality in decision-making.
302
What is meant by 'legitimate expectation'?
The expectation that a body will act in a certain way based on previous conduct or assurances.
303
What is potential bias in decision-making?
Potential bias occurs when the level of interest in a decision raises suspicion that it was not made objectively.
304
What should individuals do to avoid infringing the rule against bias?
Individuals should declare conflicts of interest and recuse themselves from decision-making on particular matters.
305
What is legitimate expectation in the context of procedural impropriety?
Legitimate expectation is when a party can demonstrate an expectation that a body would act in a certain way due to express statements or prior conduct.
306
What must be demonstrated for the ground of legitimate expectation to arise?
There must be a clear promise by the defendant or evidence of regular prior practice.
307
What does the Human Rights Act 1998 provide regarding public authorities?
It provides that it is unlawful for a public authority to act in a way incompatible with a Convention right.
308
What section of the Human Rights Act 1998 addresses the actions of public authorities?
Section 6(1) addresses the actions of public authorities.
309
Fill in the blank: The Human Rights Act 1998 introduced a new and independent ground for _______.
judicial review
310
True or False: The actions of public authorities are immune from judicial review under the Human Rights Act 1998.
False
311
What is the ECHR a product of?
The Council of Europe
## Footnote
The ECHR is based on the United Nations’ Universal Declaration of Human Rights.
312
What is the main aim of the ECHR?
To protect the rights and freedoms of individuals within the territory of a signatory state.
313
What does the ECHR declare?
Certain human rights that are or should be protected by law in each signatory state.
314
Can the acts of public authorities be challenged under the ECHR?
Yes, even if they are in accordance with national law.
315
What does the ECHR provide in relation to human rights?
Political and judicial procedures for examining alleged infringements at an international level.
316
What is the Human Rights Act 1998?
An act that made many rights enshrined in the ECHR enforceable in domestic courts.
317
What does Schedule 1 of the HRA outline?
The articles of the ECHR and its protocols that impact the HRA.
318
What is Article 2 of the ECHR?
Right to life: Everyone’s right to life shall be protected by law.
319
What does Article 3 of the ECHR prohibit?
Torture and inhumane and degrading treatment.
320
What does Article 4 of the ECHR state?
Prohibition of slavery: No one shall be held in slavery or servitude.
321
What rights are protected under Article 5 of the ECHR?
Liberty and security of person.
322
What is guaranteed by Article 6 of the ECHR?
Right to a fair trial in public by an independent and impartial tribunal.
323
What does Article 7 of the ECHR state?
No punishment without law: No one shall be held guilty of a criminal offence unless it constituted a criminal offence at the time.
324
What is the focus of Article 8 of the ECHR?
Right to privacy and family life.
325
What does Article 9 of the ECHR ensure?
Freedom of thought, conscience and religion.
326
What is protected by Article 10 of the ECHR?
Freedom of expression.
327
What does Article 11 of the ECHR guarantee?
Freedom of assembly and association.
328
What is the right outlined in Article 12 of the ECHR?
Right to marry.
329
What does Article 14 of the ECHR prohibit?
Discrimination in the enjoyment of rights and freedoms.
330
What does Article 1 of the First Protocol protect?
Protection of property.
331
What is stated in Article 2 of the First Protocol?
Right to education: No person shall be denied the right to education.
332
What does Article 3 of the First Protocol ensure?
Right to free elections.
333
What must domestic courts do when considering ECHR rights?
Take into account judgments, decisions, declarations, or advisory opinions of the European Court of Human Rights.
334
What does Section 3 of the HRA require regarding domestic legislation?
It must be read and given effect in a way compatible with the Convention rights.
335
What is a declaration of incompatibility?
A court declaration when a provision is found incompatible with a Convention right.
336
What is the difference between primary and secondary legislation in relation to ECHR?
Primary legislation is not subject to court scrutiny, while secondary legislation is.
337
What does Section 10 of the HRA allow?
Remedial orders to amend legislation declared incompatible.
338
What is unlawful for public authorities as per Section 6 of the HRA?
To act in a way which is incompatible with a Convention right.
339
What can a victim do if a public authority acts unlawfully under the HRA?
Bring proceedings against the authority or rely on the Convention right in legal proceedings.
340
What must any government legislation introduced since the HRA include?
A statement from a minister on compatibility with human rights.
341
What retrospective assumption does the HRA create?
That Parliament’s intention was to be compatible with Convention rights.
342
What has been a frequent concern regarding the HRA?
Calls for its reform or repeal.
343
When did the UK become a member of the EU?
1 January 1973
## Footnote
Under the terms of the European Communities Act 1972.
344
When did the UK officially leave the EU?
31 January 2020
## Footnote
This was when the provisions of the European Union (Withdrawal) Act 2018 came into force.
345
What was the transition period after the UK left the EU called?
Implementation period
## Footnote
This period lasted from 1 February 2020 until 31 December 2020.
346
What happened to EU law at the end of the implementation period?
Relevant EU law was 'retained' as domestic law.
347
Which protocol governs the application of some EU law in Northern Ireland?
Northern Ireland Protocol.
348
What significant legislative act was passed in June 2023 regarding EU law?
Retained EU Law (Revocation and Reform) Act 2023.
349
What is the principle of direct applicability in EU law?
Legislation becomes part of member states' law as soon as it is passed by the EU.
350
What is direct effect in the context of EU legislation?
Some EU legislation can be relied upon directly by citizens in domestic courts.
351
What are the two types of direct effect?
Vertical and horizontal direct effect.
352
What is vertical direct effect?
Provision enforceable by citizens against their member state.
353
What is horizontal direct effect?
Provision enforceable against another individual or company within a member state.
354
What are primary legislation in EU law?
Treaties that outline objectives and rules for the EU.
355
What is secondary legislation in EU law?
Designed to implement the objectives established by primary legislation.
356
What is the difference between regulations and directives in EU law?
Regulations are binding across the EU, while directives set goals but allow member states to choose how to achieve them.
357
What is the principle of supremacy in EU law?
EU law is binding over member states' national laws.
358
What Act ended the overriding role of EU law in the UK?
European Union (Withdrawal) Act 2018.
359
What is retained EU law?
EU law as it applied in the UK on 31 December 2020.
360
What are the three categories of retained EU law established by the European Union (Withdrawal Agreement) Act 2018?
* EU-derived domestic legislation
* Direct EU legislation
* General savings for rights and principles.
361
What is the purpose of the Retained EU Law (Revocation and Reform) Act 2023?
To allow amendments to retained EU law and remove special features it had in the UK legal system.
362
What must UK courts do in relation to assimilated law under the RELRRA?
Interpret and give effect to assimilated law in a way compatible with domestic legislation.
363
What is required when a provision of the assimilated law is not compatible with domestic legislation?
Make an 'incompatibility order'.
364
Under the RELRRA, are courts bound by retained EU case law?
No, except where relevant domestic case law modifies or applies it.
365
What significant impact did Brexit have on the capacity of courts in England and Wales?
The capacity to refer matters to the Court of Justice of the European Union ended.
366
What was the status of approximately 150,000 pieces of EU legislation after Brexit?
They were retained, though only around 3,000 are believed to have practical impact.
367
What is the significance of the Windsor Framework negotiated in February 2023?
It adjusted which parts of EU law still apply in Northern Ireland.
368
Summary of key principles
There are different types of EU law such as treaties (primary), regulations, directives,
decisions (secondary) and non-binding recommendations and opinions.
* Treaties and regulations have direct applicability and direct effect.
* Directives do not have direct applicability and each member state needs to decide how
they will incorporate it into their domestic legislation. Directives may have vertical direct
effect, but do not have horizontal direct effect.
* Until 31 January 2020, EU law applied in the UK due to provisions of the European
Communities Act 1972. That Act was repealed with effect from 31 January 2020. At the
end of the implementation period on 31 December 2020, EU law in force became a part of
the UK’s domestic legal framework as a new category of retained EU law, pursuant to the
European Union (Withdrawal) Act 2018.
* Specified pieces of retained EU law were revoked on 31 December 2023 under the
RELRRA. The remaining retained law was renamed “assimilated law” and is subject to
domestic rules of interpretation.
* Case law of the Court of Justice of the European Union in judgments delivered before the
end of the implementation period is no longer binding on UK courts.
