Public Law Flashcards
(40 cards)
Which one of the following statements best describes the linguistic presumption that should be used in the context to aid the process of statutory interpretation?
In order to assist in a literal interpretation of a (fictitious) statute, the judge applies the presumption ‘expressio unius est exclusio alterius’ when interpreting the statutory phrase: ‘the imposition of the tax on income, share dividends and bond yields.’
Which one of the following statements best describes the purposive approach to statutory interpretation?
Judges will look at the strict meaning of the words contained in a statute, as well as the purpose or objective of the Act in question. If there is a conflict between the two, the judges will interpret the words in the context of and in accordance with the wider purpose of the Act.
Correct. Judges do not automatically use a purposive approach. However, particularly in the modern day, they naturally tend to assess the overall context within which the Act came about so that, if a literal reading of the words in the statute does not produce a plausible interpretation, they will be informed by this wider context. The other answers did not fully or clearly describe the context in which, and the objective for which, the courts use a purposive approach to statutory interpretation.
Which one of the following statements best describes the relevant stage of the legislative process?
The committee stage of a bill gives MPs appointed to the relevant legislative committee the chance to scrutinise the detail of the bill and to propose necessary amendments.
What is the principle of separation of powers, and how does it apply to tribunal appointment processes?
Definition: Divides government into three branches (legislature, executive, judiciary) to prevent power concentration and ensure checks and balances.
UK Context: Partial separation; judiciary must be independent (Constitutional Reform Act 2005, s.3).
Tribunal Application: Undermined if the executive appoints tribunal members, as this compromises judicial independence (e.g., R (Cart) v Upper Tribunal [2011]).
Impact: A structural issue affecting the tribunal’s independence from the executive, violating the separation of powers.
What is procedural fairness, and how does it relate to tribunal appointment processes?
Definition: A principle of natural justice ensuring fair decision-making, including an unbiased decision-maker and a fair hearing (Ridge v Baldwin [1964]).
Elements: Bias rule (impartiality, Porter v Magill [2001]); fair hearing rule (right to present case).
Tribunal Application: Undermined if executive appointments create actual or perceived bias, affecting the fairness of hearings.
Impact: A case-specific issue; parties may perceive bias, but the core issue stems from the appointment process’s lack of independence.
What are the key differences between separation of powers and procedural fairness in the context of tribunal appointments?
Focus: Separation of powers is structural (independence of branches); procedural fairness is case-specific (fairness of process).
Application: Separation of powers ensures tribunal independence from the executive; procedural fairness ensures impartial hearings.
Impact: Separation of powers violation affects the system (e.g., executive control over appointments); procedural fairness violation affects specific cases (e.g., perceived bias).
Legal Basis: Separation of powers (Constitutional Reform Act 2005, s.3); procedural fairness (natural justice, Porter v Magill).
Example: Executive appointing tribunal members undermines separation of powers (structural); resulting bias undermines procedural fairness (case-specific).
The court has just made an order putting a temporary stop on the deportation of an asylum seeker who has been given permission to appeal against his imminent planned removal from the country. Enquiries in the Home Office reveal that the individual is in a holding cell at Gatwick Airport and the flight is due to leave. The matter is referred to the personal office of a Minister of State in the Home Office which directs that the deportation should go ahead as it is too late to delay the process.
After the asylum seeker’s lawyers issue an application to court to review these actions, which one of the following steps is the court most likely to take?
The court is likely to find that the office of the Minister in the Home Office had been in contempt of court.
Which one of the following statements best describes the broad historical processes at work in the development of prerogative power in the period since the Glorious Revolution in 1688?
Prerogative power is not as broad a source of governmental power as it was, given the increase in the number of statutes over the last century in particular. The prerogative remains significant constitutionally, but it cannot be seen as a special form of power anymore, as it is no longer immune from the legal controls exercised over other governmental powers.
A company director, born and brought up in the UK, though now living abroad, has recently fallen foul of strict UK regulations about selling security and riot control equipment to a hostile foreign government. The UK government is seeking to extradite him back to the UK on criminal charges. It has now also rejected his application to renew his UK passport, which he made shortly before the charges were issued.
Which one of the following statements best describes the likely approach that the court will take if the director challenges the UK Foreign Office in court over its refusal to issue a new passport?
The court will accept jurisdiction for the case, even though the power to issue passports falls under the broad foreign affairs prerogative, because it is seen as falling at the administrative end of the spectrum and there is therefore no doubt nowadays that is a ‘justiciable’ matter.
You are advising a client in relation to a dispute with a manufacturer of a particular kind of alarm system. Part of the dispute concerns the technical specifications of this alarm system. You are looking to rely on a decision made by the European Commission under a power conferred by an EU Regulation in relation to those specifications. The decision, which supplemented the provisions of the Regulation, was made before the UK withdrew from the EU and was addressed to manufacturers of this kind of alarm system.
The decision is a tertiary act under article 290 TFEU as it was made under a power delegated by an EU Regulation to the European Commission to make a decision to supplement that EU Regulation. Tertiary decisions have been retained by s.3 EUWA 2018 and are classified as assimilated direct EU legislation.
What is the status of an EU Regulation and its interaction with UK law post-Brexit when it conflicts with an Act of Parliament?
The EU Regulation, though not preserved by the Withdrawal Agreement, is retained as direct EU legislation under s.3 EUWA 2018 and classified as assimilated law.
The principle of supremacy of EU law no longer applies to assimilated EU law (s.5(A1) EUWA 2018).
If the EU Regulation is incapable of being interpreted compatibly with an Act of Parliament, the Act of Parliament overrides it (s.5(A2) EUWA 2018).
The court is required to make an incompatibility order in such cases (s.6D EUWA 2018).
How are UK domestic tribunals required to treat CJEU judgments in cases involving assimilated law post-Brexit, and can they refer questions to the CJEU?
Domestic tribunals remain bound by CJEU judgments decided before the end of the transition period (31 December 2020) when dealing with assimilated law (s.6(3) EUWA 2018).
For CJEU judgments decided after 31 December 2020, tribunals are not bound but must have due regard to them if relevant (s.6(1)(a) EUWA 2018).
Domestic tribunals cannot make preliminary references to the CJEU regarding assimilated law after the transition period ended (s.6(1)(b) EUWA 2018).
If a court in England finds that an Act of Parliament is incompatible with an EU Regulation preserved by the Withdrawal Agreement, what must the court do?
The issue concerns a Union citizen resident in the UK at the end of the transition period (31 December 2020), covered by an EU Regulation preserved by the Withdrawal Agreement.
The preserved EU Regulation is governed by s.7A of the EUWA 2018, and s.5(7) ensures the supremacy of EU law applies in this situation.
The court is required to disapply the incompatible Act of Parliament, following the principle of EU law supremacy (per Simmenthal and ex p. Factortame, House of Lords).
Are EU Directives retained as assimilated law under the EUWA 2018, and what changed regarding their status?
EU Directives are no longer retained as assimilated law under the EUWA 2018.
Previously, they were retained in certain circumstances under s.4 EUWA 2018, but this provision was repealed by the Retained EU Law (Revocation and Reform) Act 2023 (REULA 2023).
What is the best legal advice under Article 3 ECHR for a family facing harassment and a stabbing while housed by NASS, seeking to be moved? ( Freedom from torture)
Answer
NASS, as a public authority, has a positive obligation under Article 3 ECHR to take reasonable measures to prevent people under its care from being exposed to the risk of inhuman or degrading treatment by third parties.
This duty is not absolute but depends on the harm reaching the Article 3 threshold (e.g., sustained harassment, stabbing).
If NASS had actual or constructive knowledge of the harassment and failed to act, Article 3 may be engaged, allowing legal action under the HRA.
Such action could result in a court order to move the family to more suitable accommodation.
What is the best advice on the prospects of bringing an action under Article 5(3) ECHR for a client detained for 74 hours without charge after a break-in arrest?
Your client has a reasonably strong case for a violation of Article 5(3) ECHR, which requires prompt judicial oversight of detention.
The ECtHR allows detention up to four days in some cases, but shorter periods can be incompatible depending on context.
In this case, a 74-hour detention without judicial oversight for a significant but non-violent, non-armed, non-terrorism-related crime (break-in) is unlikely to be justified by a court.
Does Article 6 ECHR apply to the pre-trial stage, including arrest, and was it engaged in the case of a client released without charge after a break-in arrest?
In Murray v UK, the ECtHR clarified that Article 6 can apply to the entire criminal process, including the pre-trial stage from the point of arrest.
However, this application is contingent upon the applicant being charged with an offence.
On these facts, since the client was released without charge, his Article 6 rights were not engaged, as the requirement for a charge is explicit in all three parts of Article 6.
Can an educational psychologist employed by a local authority challenge a 10% salary reduction and bonus scheme suspension by judicial review, given mixed public and private law issues?
The client can challenge the salary and bonus scheme decisions by judicial review.
Whilst the claim involves issues of public and private law, the courts no longer rigidly apply the procedural exclusivity rule established in O’Reilly v Mackman.
The facts do not suggest that the client’s chosen proceedings would flout the general principles contained in Part 1 of the Civil Procedure Rules.
This reflects the modern courts’ approach to mixed claims, as seen in cases like Clark.
What is the impact of procedural issues on the grant of remedies in a judicial review claim, even if permission is granted?
Even if a procedural issue does not prevent the grant of permission for a judicial review claim, it can still act as a barrier to the grant of an interim or final remedy.
Courts consider preliminary requirements (e.g., compliance with procedural rules, time limits, and the appropriateness of the remedy sought) when deciding on remedies.
Failure to meet these requirements may result in the denial of remedies, despite permission being granted.
What is the principle of proportionality in UK public law, and how has its application evolved with the HRA and EU law?
Definition: Proportionality requires that any interference with a right or freedom must be suitable, necessary, and balanced, ensuring the least intrusive means are used to achieve a legitimate aim.
Pre-HRA/EU Influence: Traditionally, UK courts applied a Wednesbury unreasonableness test, a lighter review standard, focusing on irrationality rather than proportionality.
Evolution with HRA: The Human Rights Act 1998, incorporating ECHR rights, introduced a structured proportionality test (e.g., Bank Mellat v HM Treasury [2013]), assessing legitimacy, suitability, necessity, and balance, especially in Article 8-11 cases.
EU Law Impact: Pre-Brexit, EU law (e.g., TFEU principles) reinforced proportionality in areas like competition and free movement, influencing UK administrative law (e.g., R v Secretary of State for Health, ex p. Eastside Cheese Co [1999]).
Post-Brexit: With assimilated law, proportionality remains relevant for retained EU rights and HRA cases, though its application may narrow outside EU contexts.
What are the three primary grounds for judicial review in UK public law, and how do they apply to public authority decisions?
Illegality: Public authorities must act within their legal powers (ultra vires) and correctly apply the law, e.g., considering mandatory factors (Associated Provincial Picture Houses v Wednesbury Corp [1948]).
Irrationality: Decisions must be reasonable, not so unreasonable that no authority could have made them (Wednesbury unreasonableness), e.g., avoiding arbitrary decisions.
Procedural Unfairness: Authorities must follow fair procedures, adhering to natural justice (e.g., right to a hearing, no bias) and statutory requirements (Ridge v Baldwin [1964]).
Application: These grounds ensure lawful, reasonable, and fair decision-making, protecting against abuse of power and upholding the rule of law.
What are the key requirements for ensuring compliance with Article 6(1) ECHR (right to a fair trial) in closed material proceedings involving national security concerns?
The state must ensure procedural fairness by providing the individual with sufficient information about the case to enable them to challenge it effectively, often through a special advocate (A v UK [2009]).
Article 6(1) requires balancing national security with the right to a fair trial, ensuring the individual can give effective instructions, even if full disclosure is restricted.
Closed material proceedings must not undermine the essence of a fair trial—special advocates can represent the individual, but the state cannot exclude the individual’s chosen lawyer without justification, nor rely on overly broad restrictions (e.g., limiting evidence use without proportionality).
Under what conditions is a lower court in the UK bound by the decisions of a higher court under the doctrine of binding precedent?
A lower court, such as the High Court, must follow the decisions of a higher court, such as the Court of Appeal, because they are binding precedents within the judicial hierarchy (Young v Bristol Aeroplane Co Ltd [1944]).
This ensures consistency and predictability in the law, with the Court of Appeal binding the High Court and the Supreme Court binding both.
Exceptions (e.g., distinguishing on material facts or per incuriam decisions) may apply, but the default rule is binding unless such exceptions are clearly established by the case facts.
What are the obligations of a Cabinet minister under the doctrine of Collective Ministerial Responsibility when publicly addressing a Cabinet decision they privately oppose?
A Cabinet minister must publicly support all Cabinet decisions, regardless of personal disagreement, to maintain a united government front (Cabinet Manual 2011).
This constitutional convention requires active endorsement in public forums (e.g., media briefings), even after being outvoted, unless the Prime Minister formally suspends the convention or the minister resigns.
Options like neutrality, avoidance, or dissent without approval breach this duty, potentially leading to resignation (e.g., Robin Cook, 2003).
