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Flashcards in Public Law - ACADEMICS Deck (155):
1

2011 Referendum in Wales

Removed part 3 and such.5 of G of W Act 2006, replacing with part 4 and sch.7 - Acts of Assembly with full competence in 20 main areas and third stage from Better Governance for Wales

1

What did Kavanagh say of the decision in Wilson?

Either returned courts to usual function or increased their powers by retaining choice in choosing enacted or 'unenacted legislation'

1

What section of the CRA guarantees judicial independence through LC function?

S.3

1

What protocol of the ECHR allows EU to accede to the ECHR?

Protocol 14

1

What question did Barber think RoL asks?

'What does it mean to be governed by law rather than by men'

1

Who said that the law needs to be clear to respect autonomy, and thus requires other parts such as substantive equality?

TRS Allen

2

"A Programme for Progress" Labour Peers

HoL Reform - 450, remove hereditary, force retirement at 80 (see Hand), all working peers, 3/5, no Lords majority, HoL Appointments Commission in statute.

2

2004 Northern England devo referendums

Decisive rejection of political power to English Regional Assemblies

2

"Better Governance for Wales" (2005)

Separate legislature and executive in three stages - more positive by G, enhanced legislative powers and grant assembly greater legislative devo after referendum (see 2011 Referendum)

2

Name two cases where RoL has affected the interpretation of statutes

Pierson and Simms - injection of substantive in Simms, need to expressly infringe in Pierson

2

TRS Allen on RoL

law needs to be clear to respect autonomy, and thus requires other parts such as substantive equality

3

What did Vernon Bogdanor say about the British Constitution

The old was based on PS, the new is based on the idea of a constitutional state based on separation of powers

3

In what case did the courts explicitly refuse to accept a common law duty to give reasons?

Hasan

3

What are two reasons why Elliot thinks the Torie HRA plans to be unlikely?

Coalition, where neither Lib Dem nor Labour support withdrawal, and devolution matters

4

What case seems to show the Lords advocating P in domestic law?

Pham

5

Who argued, with Hickman and Elliot, that WU should coexist with P?

Sales

6

Who highlighted the issue of EVEL with a majority SNP and labour government - minority in England unable to pass England-only legislation?

Deborah Orr

6

Van Duyn v Home Office ratio

Fundamental freedoms have direct effect

6

What case established the supremacy of EU law?

Costa v ENEL

6

How does Dworkin distinguish between the formal and substantive conception of RoL?

'Rule book conception' and 'rights conception'

8

"Protecting Human Rights in the UK"

Conservatives - repeal HRA, remove binding nature as 'advisory only' from ECHR, legislate BoR only applying to most serious cases, and if rejected by CoEU then withdraw completely.

9

How does Drewry argue Dicey's RoL does not match 20th century

Prohibiting wide discretionary authority does not match with 20th century interventionist state

10

Who said in Karas that it was 'at best an unacceptable disregard' of RoL and 'at worst an unacceptable disdain?

Munby J

10

Who argued that stopping Scottish/Welsh MPs from voting/creating English P will break up the union?

Peter Hain MP

11

Who argued the UK would end up as a confederal state?

Rafael Bear

12

What did Lord Upjohn say in Padfield?

No reasons given may lead the court to conclude that 'he had no good reason at all'

13

Why did the Sunningdale Agreement collapse?

General strike and unionist opposition

14

Richard Commission (2002)

2004 Report proposed primary legislative powers on all matters not explicitly reserved

15

HoL Reform Bill 2012

240 elected, 60 appointed, 10 years. Abandoned in August 2012

16

St David's Day Process (2015)

Recommendations from Silk Commission - Welsh devo moved closer to Scottish (reserved), but maintain asymmetry by keeping significant areas at Westminster where they are not for Scotland and NI

17

What did Jowell say of RoL

It is a form of institutional morality, acting as a constraint on the uninhibited exercise of government powers

19

Who was sceptical about 'personal prerogatives' of the Queen given the conventions and procedures already established?

Blackburn

20

Who argued HRA s.10 gives too much power to G at the expense of P?

Loveland

21

Who believes in RoL as a principle of institutional morality, constrining uninhibited exercise of governmental power?

Jowell

21

What does Elliot suggest about interpreting legislation and pragmatism?

In cases like Witham and Anisminic, the courts have preferred to interpret P intention as consistent with fundamentals, rather than refusing to apply the AoP

23

Who argued the law needs to be clear to respect autonomy, so other equally important requirements (e.g. substantive equality) are needed in RoL?

TRS Allen

24

Who argued the EU would be 'doomed' and it would be the 'end of peace on the continent' if Tories leave EU?

Alan Posener

25

Who highlighted how the White Paper, "Better Governance for Wales" would still limit the legislative powers to the current powers the Assembly already has

Alan Trend

26

What was the first acknowledgment of manner and form entrenchment after Thoburn?

H v Lord Advocate - no repeal of Scotland Act unless expressly as 'fundamental constitutional nature'

27

What does s.2(4) ECA allow?

Allows EU law to prevail over domestic law

27

Who argued RoL needs to minimally conform to autonoy, intrinsically including individual respect for persons?

Dworkin

28

"Legislative devolution is federalism without the courage of its convictions"

Sir David Williams

29

Macarthys Ltd v Smith

Equal pay

30

What did Craig argue about ECJ supremacy?

Communautaire approach through Costa v ENEL

31

Lord Falconer on devo

English P would 'dwarf all other institutions'

32

Who expressed concern that courts may see EU law as 'autonomously entrenched' rather than taking effect through AoPs?

JDB Mitchell

32

Who looked into the possibility of entrenching a British BoR?

Joint Committee on Human Rights

34

Karas

Next day deportation

36

Who termed our electoral system 'absurd' and called for reform?

Owen Jones

36

Kavanagh

Pepper v Hart amounts to enforcing 'unenacted intentions', undermining rationale and integrity of the legislative process

37

Name at least two times when RoL has prohibited the action of officials

Karas, Entick v Carrington, Cornerhouse, Ex p Bennett, Golder v UK

38

Who sarcastically referred to Blair as 'President Blair'?

Timothy Ash in the Guardian

39

HoLCC on arms length bodies

Threefold classification - non-ministerial, executive and non-departmental

39

Who said that no reasons given may lead the court to conclude that 'he had no good reason at all'

Lord Upjohn in Padfield

40

Who believed Dicey's RoL was substantive?

TRS Allen - used it to base his own conception

41

Government response to HoLCC 2010-12

Unnecessary and not qualitatively different, impossible to define

41

Who treated Wade's political fact of rule of recognition with 'respectful reserve'?

TRS Allen

42

Anglo-Irish Agreement (1985)

G and Irish G agreed to cooperate on justice and political progress

43

Who argued Dworkin's RoL makes it 'nothing more or less than a synonym for a rights based theory of law and adjudication'

Craig

44

What does Elliot note is the main risk arising out of Pham?

WU operated as an important safeguard against judicial overreach

45

Who argued for a 'hierarchy of constitutional norms' after HS2?

M Elliot

46

What is the communautaire approach through Costa v ENEL?

Contractarian, functional, egalitarian and analytical reasons for accepting ECJ supremacy

47

What was said at para 61 in Osborn?

The courts should continue to develop CL in areas falling within the ECHR

48

HoLCC on Legislative and Regulatory Reform Bill 2006

'Further safeguards'

48

Treasury and Civil Service Committee

'Those who are to make decisions should be publicly answerable for them'

49

Who holds a 'construction' rather than 'revolution' view of Factortame?

Wade

50

Downing Street Declaration (1993)

Recognised legitimacy of nationalist tradition in NI

51

What did Dominic Grieve argue about the HRA and the 'living instrument'?

He highlights how statutes are 'always speaking'

52

Who levelled criticism against the Torie government for their view of the ECHR as a 'living instrument' in a negative light?

Dominic Grieve

54

Who described Scotland as the 'catalyst for change', criticising the 'two main parties' apathy to the fact that ruling by consent in Scotland is becoming more and more untenable?

Deborah Orr

55

What parts does Raz add to Dicey's conception of RoL?

Natural justice, independent judiciary, no discretion by private agencies to divert the law, stable and courts have review powers

57

McKay Commission

Suggested EVEL, only allowing English laws to pass with a majority

59

What journalist for the Guardian argued a federal state is an inevitable outcome for the UK?

Alan Posener

61

What did John Curtis say of the West Lothian question?

A 'form of English nationalism... beginning to emerge'

62

10th Report of the HoC EU Scrutiny Commission

Dual acceptance of treaties needed in UK. No higher legal order than P - EU given by virtue of s.2 and s.3 ECA DOMESTIC legislation.

63

What remains undefined in the CRA and down to interpretation?

Judicial independence

64

What principle was given to the courts through HRA?

Principle of construction

65

What did Munby J say in Karas?

'at best an unacceptable disregard' of RoL and 'at worst an unacceptable disdain

66

What voting system did the Green Party propose?

Proportional representation to allow greens to have a voice

67

Who highlighted Dicey's fundamental principles were contradictory?

Jan-Erik Lane

68

Lord Toulson in Kennedy v Charity Commission

'it was not the purpose of the HRA that the CL should become an ossuary'

70

Sunning dale Agreement (1973)

Attempt to form power-sharing NI Exec and cross-border Council of Ireland.

71

What did Marina Hyde suggest about Tory planners?

They were looking into the constitutional possibilities of Cameron just staying on in Number 10, arguing no one else won either

72

What kid of legislation gives legislativ powers to the executive, against SP?

Delegated legislation

73

Who satirised the British constitution because of reliance on a letter written to the Times in 1950, supposedly from the private minister of George VI?

Marina Hyde, The Guardian

74

What judge in particular in 2014 and 2015 has advocated open justice and common law first?

Lord Reed (Osborne, Para 61)

76

Liversidge v Anderson

Lord Atkin argued the application of laws does not change depending on the social context (i.e. no different in war time - but Wednesbury?)

77

1998 Referendum in eNGLAND

Directly elected administrative body for Greater London - 3/4 of the vote allowed it to pass, but only 1/3 of population voted

79

Who saw HS2 as a 'vision of the British constitution substantially at odds with Diceyan orthodoxy'

Elliott

80

How were the normative and legality principles by Craig taken even further than Simms in HS2?

Not only common law rights, but constitutional statutes apply - need express words to overrule them

81

Campaign for the North

Regional govt for North of England with tax-raising powers and responsibility for policy areas

82

What party in particular, speaking to Brand, argued for a people's constitutional convention?

Green Party

83

Van Duyn v Home Office

Scientologist

84

What Torie suggested that, despite the only vague reference to a BoR in the Torie manifesto, the ECHR withdrawal is still a real possibility?

Lord Faulks

86

Who argued that the courts in Factortame were merely determining what existing constitutional order required, rather than affirming a kind of rule of recognition

TRS Allen

87

What did Alan Posener argue about pulling out of the EU?

It would be 'the end of peace on the continent' and the EU would be 'doomed'

88

Jowell on RoL

RoL as a principle of institutional morality, constraining uninhibited exercise of governmental power

89

Who said in Kennedy v Charity Commission that 'it was not the purpose of the HRA that the CL should become an ossuary'?

Lord Toulson

90

Why did Sales advocate a bifurcated view of public law?

proportionality may not be universally applicable, and ultra vires governs JR so can only go past this if statute confirms it - therefore, too radical to suggest P intended JR through proportionality outwith the HRA

92

Who said that an English P would 'dwarf all other institutions'?

Lord Falconer

94

Who argued 'judges do and must make law in the gaps left by P'?

Lord Steyn in Brown

95

What were the two major issues Lord Faulks highlighted the Tories had with HRA

S.2 and Art.46

97

"The Implications of Devolution for England" Chapter 4

Conservative's hybrid approach to EVEL: committee stage and veto

98

What case qualified the decision in Pepper v Hart?

Wilson

100

HoLCC 2010-12

Formal procedures for constitutional reform; constitutional impact, consultation, g&w papers and pre/post scrutiny

101

PASC 2013, "Truth to Power: How CS Reform can Succeed"

Conflict with N-T through CSRP and s.10(2) CRAG. Haldane doctrine vital to hold executive to account and at core of relationship - but still appropriate? Joint committee of both on CS

102

What case showed the courts refusing to convict because fair trial fundamental to RoL?

ex p Bennett

103

Name at least two times when RoL has affected the interpretation of statutes

Simms, Pierson, CRA 2005, Liverside v Anderson

104

Sir David Williams

"Legislative devolution is federalism without the courage of its convictions"

105

What did Alan Trend welcome in particular about the White Paper, "Better Governance for Britain"

The separate legislature and executive it proposed

106

Who called for abolishment of the HoL instead of the Life Peerages Act

Hugh Gaitskell

107

Who said in Factortame that it was 'local recognition' of the constitutional state of things, suggesting support for TRS Allen?

Lord Bridge

109

"Your Right to Know' White Paper

Preceded FOIA - 'benchmark yet to be obtained' (Lord McNally)

110

What is the normative principle set down by Craig?

Continuing PS - can repeal any statute

111

"Scotland in the UK: An Enduring Settlement"

Clause 1 - Scottish P on a permanent basis. Clause 2 - Sewel Conventions

112

Who highlighted how the Ministerial Code clearly states it is the duty of ministers and CS to respect international obligations?

Dominic Grieve

113

What is Wade's view of Factortame?

Construction view - 'catalyst for a partial change in the rule of recognition', adapting political fact of PS to new situation

115

Who said 'the HoL has no place in a democratic society'

Nicola Sturgeon in a speech in Glasgow

117

Which Scottish figure stated that 'federalism is the outcome of all of this'?

Secretary of State for Scotland, Alistair Carmichael

118

What quote of Irvine appears to suggest he rejects any injection of substantive RoL?

courts should not make decisions 'on the basis of their view of the importance of the UK's standing as a good global citizen'

119

Dworkin on RoL

RoL needs to minimally conform to autonomy, intrinsically including individual respect for persons

120

In what case did Denning stretch the meaning of a statute to make it compatible with EU law?

Macarthys v Smith

121

Name four people/bodies who included autonomy/human rights in their RoL

Bingham, Dworkin, Venice Commission and TRS Allen

122

What does s.3 of the ECA allow?

Disapplication of a law in conflict with EU law

123

Lord Faulks on Art.46

'subcontracted' human-rights, rather than having 'brought rights home'

124

Who criticised the courts on the Ullah principle?

Lord Irvine at the UCL Judicial Institute

126

In what newspaper did they argue Miliband may be showing an outright opposition to the principle of coalition?

Guardian

127

St Andrew's Day Agreement (2006)

First Assembly since Belfast Agreement (1998) to complete full term

128

JDB Mitchell on ECA

expressed concern that courts may see EU law as 'autonomously entrenched' rather than taking effect through AoPs

129

Who believed Dicey's RoL theory was formal?

Craig

130

What two academics agree that notions of devolution and federalism are not wholly distinct but rest on a continuum?

Saunders and Elliot

132

Kilbrandon Commission

Rejected federalism but split on devolution

133

Who argued Diceys exclusion of wide discretionary authority in govt fails to acknowledge 20th century reality?

Drewry

134

Civil Service Reform Plan 2012 issues

CS Commission resisted substituting ministerial choice for PM power to veto, but political pressure caused them to cede ground

135

Who suggested EU position is by reference to ECA (and EUA), and 'other features of the domestic constitutional landscape' with which it might conflict

Elliott

136

HoC PASC

Need for convention to discuss unfinished business of devolution and possibly wider reform

136

MP Peter Hain

Stopping Scottish/Welsh MPs from voting/creating English P will break up the union

137

What do saunders and elliot argue about federalism?

notions of devolution and federalism are not wholly distinct but rest on a continuum

138

Why is the principle of construction given by HRA difficult?

 de facto insertion of additional clauses is hard to reconcile with traditional SP

139

Who argued Pepper v Hart amounts to enforcing 'unenacted intentions', undermining rationale and integrity of the legislative process?

Kavanagh

140

Coalition Agreement for Stability and Reform

'No constitutional difference... but practices need to reflect' first peacetime coalition since 1930s

141

What four parts are there to Dicey's conception of the RoL?

(1) No man above the law, (2) regular application of the law, (3) rights are those people actually have and (4) sufficiently clear, prospective and accessible

142

What did Craig note about Dworkin's RoL?

'nothing more or less than a synonym for a rights based theory of law and adjudication'

143

HoLCC 2012 on CS

CS are 'fully accountable to ministers , and ministers are fully accountable to P', but new factors (ombudsmen, Select Committees) and new questions of personal accountability - SCs can express criticism over particular CS and recommend disciplinary procedures

144

Who argued that if the UK became a federal state, Carlisle would be the natural centre point because Westminster suffers from weak leadership?

Tom Devine

145

In what case did Lord Atkin argue the application of laws does not change depending on the social context

Liversidge v Anderson

147

What academic highlights how PS is only an ENGLISH theory?

Elliot

148

What did Lord Reed argue in Pham?

Uses interpretative methdology to suggest courts interpret legislation interfering with important rights as requiring no more than objectively necessary, using Leech and Daly to show this

149

What does Elliot think the Torie government have got wrong in their view on BoR?

That there is a blank canvas behind the HRA - but Osborn shows there is not

150

Who was the separation of powers first developed by?

Aristotle and John Locke

151

The Wakeham Report 2000

HoL Reform - 550, majority appointed (Cash for Peerages), remove Weatherhill

152

What is the legality principle set down by Craig?

Statutory interpretation tool requiring express words for infringing CL rights

153

Who argued RoL intrinsically include indvidual respect and concern for persons?

Dworkin

154

What two ways does Tomkins highlight s.18 of the EUA is limited?

Only attacks EU law, but most controversial from ECJ rulings, and pays no attention to other challenges (human rights/common law)

155

Who highlighted two ways s.18 EUA is limited?

Tomkins