Public Law Second Term Flashcards
(229 cards)
1
Q
Ex p Daly
A
Correspondence with lawyer
1
Q
Article 13 ECHR
A
Right to an effective remedy
1
Q
What violation was found in Goodwin v UK?
A
Art.10
2
Q
R (Chester) v SoS for Justice
A
Sumption: ‘truly fundamental principle of law or the most egregious oversight’
2
Q
Hutchinson v UK
A
Refused to follow Vinter, finding MacLoughlin correct
2
Q
Inability to make statute compatible has what effect?
A
None
3
Q
Osborne v Parole Board
A
Oral hearings for early release
4
Q
Begum
A
Muslim girl - no process review at HRA
6
Q
What case shows a clear disregard for intention of P under s.3 HRA?
A
Ghaidan v Mendoza
6
Q
Derbyshire CC v The Times on Art.10
A
CL matches Art.10 so look no further
7
Q
Why was there concern over Venables v News Groups?
A
Overdevelopment of breach of confidence into a virtual tort of invasion of privacy
8
Q
Why is Ridge considered a landmark case for JR?
A
Extended doctrine of natural justice into administrative decision-making
8
Q
Bank Mellat v HM Treasury (No.2)
A
P has not resolved all WU difficulties
8
Q
Al-Khawaja v UK
A
Cross-examination, hearsay
8
Q
Ghaidan v Mendoza
A
Tenancy, ‘as if they were’
8
Q
Duncan v Jones
A
Obstructing constable
9
Q
Why was Art.13 excluded from HRA?
A
To avoid arguments over s.3 and s.4 not being sufficient
10
Q
What is s.4 HRA?
A
Declaration of incompatibility
11
Q
R (Greenpeace) v SoS for Trade and Industry
A
‘no longer a privilege’ at least in the environmental sector (Sullivan J)
12
Q
Which case used Leech to enforce a fundamental right of access to courts?
A
Ex p Witham –> Court fees
13
Q
R (McDonald) v Kensington & Chelsea
A
Ballerina
13
Q
What Article was not incorporated from ECHR?
A
Article 13
13
Q
Ullah v Special Immigration Adjudicator criticism
A
Eurocentric and damaging to integrity of HRA
14
Q
Who criticises Wednesbury for setting the ‘default hurdle… so high that no case can come close’?
A
Craig
14
What case said there is no need to look to Art.6 as CL notions of fairness match?
Osborne v Parole board
15
What argument in particular does s.3 and R v A question
Continuing PS by Wade
15
What category of expression does Steel & Morris v UK fall under?
(2) Civil or political interest
16
What case suggested Art.10 mirrors CL?
DCC v Times
17
Which case showed that GC had failed to understand domestic law in UK?
Hutchinson v UK
19
Huang v SoS for the HD
Overarching fourth element on proportionality
19
What are the two traditions of rights?
International human rights and natural/civil rights
20
What word was read into the statute in WDM?
'Sound'
20
Who thinks all substantive review 'entails some view of the merits'?
Craig
21
What are the two impacts of s.4 HRA?
Political pressure on G and s.10 Henry VIII Power to ministers to fast-track remedial order for amendment/repeal of legislation
21
Why was the injunction in Observer and Guardian v UK not found to be necessary?
Info no longer confidential
21
What previous ECtHR decision provided an issue in ADI?
Vgt Verein v Switzerland
22
What two factors led to the outcome in Nottinghamshire CC v SoS for the E?
Judicial deference on democratic grounds and an acceptance of institutional competence (Barber: efficiency idea)
23
Anisminic v Foreign Compensation Commission
QUANGO, nationalised
23
R (Corner House Research) v Director of the SFO
Saudi Arabia
23
Who said (2 people) RoL requires legal protection of fundamental rights?
Bingham/Joel
24
Who believes HRA preserved PS and in what case?
Steyn in Ex p Kebeline
25
What did Lord Keith say in Derbyshire CC v Times?
No need to resort to Art.10 as CL constitutional right of freedom of expression
26
Why was there no violation of Art.6 in Al-Khawaja v UK?
Minor part of case and margin of appreciation
27
What are the four suggestions by the Conservatives on HRA and ECHR?
(1) Repeal HRA and remove binding nature of ECHR and ECtHR, (2) legislate BoR, (3) New BoR only to serious cases and (4) withdraw completely if not accepted by Council of Europe
28
Helow v SS for the HD
Lady Cosgrove, IAJLJ
29
R (Doherty) v Birmingham CC
Bingham: room to consider if P 'has a role in conventional JR', so close hard to see 'daylight'
30
What constitution suggests natural/civil rights are protected because they are fundamental to human dignity?
German constitution: basic law is unrepealable
31
WM (DRC) v SoS for the HD
Insufficient consideration to fresh evidence
31
What did Denning say of Art.11?
'history is full of warnings against suppression of these rights'
32
Debyshire CC v Times
corruption in DCC
32
R v A (No.2)
Cross-examination of V's prior relationship with D
33
What Article covers freedom of assembly?
Article 11
34
Who strongly challenged the UV principle as the source is from common law?
Craig and Bamforth, "Constitutional Analysis"
34
Osborne v Parole Board
Oral hearing; right to fair trial
34
What is a major problem with s.3 HRA, despite Kebeline?
PS
34
What are three arguments for keeping Wednesbury?
P would have to decide to allow proportionality because more assertive, WU is relatively simple and been used for 50 years, and judicial restraint needed for separation of powers
35
Why is it possible there was a high watermark of restraint in Wednesbury?
War-like state of mind and controversial nationally
36
What are the four subheadings of procedural fairness?
Fair haring, no bis, reason-giving and a duty to consult
37
Observer and Guardian v UK
Injunction against Spycatcher
39
SoS for the HD v AF
Followed A v UK on control orders even though some judges thought it wrong (Hoffman)
40
What case acknowledged a CL right to peaceful public assembly?
DPP v Jones; Beatty v Gillbanks with qualification in Duncan v Jones
41
What articles were engaged in Ghaidan v Mendoza?
Art.14 and 6
43
Why is the judgment in Osborne important?
If G repeals HRA or withdraws from ECHR
45
What is the justification for proportionality in EU and ECHR law?
From ECA and HRA
46
Boddington v British Transport Police
Not 'watertight compartments'
46
What statute recognises freedom of expression?
Contempt of Court Act 1981, s.2, 5 and 10
47
Who did not agree that P and WU are 'equally suitable', against Craig?
T Hickman, "Problems with Proportionality"
48
Who gave two different senses of unreasonableness in Wednesbury?
Lord Greene
48
What are the three generations of international rights?
(1) civil and political, (2) social, economic and cultural and (3) group rights
48
what is the view of human rights which sidesteps the undemocratic view that judges overrule MPs?
Instrumentalist view
49
Why was the decision in British Oxygen not unreasonable?
Not fettered discretion, just administrative rules
50
What case did Mustily develop on in Doody?
Baldwin
51
What is a different justification for natural/civil rights that isn't from an instrumentalist view?
Fundamental to human dignity
52
What did they read as supporting CL notions of fairness in Smith and West?
Art.6(1)
54
Beatty v Gillbanks
Skeleton Army
57
What do restrictions on Art.10 need to be?
Prescribed by law and necessary to achieve democratic ends
58
What two judges in Daly considered if Wednesbury will continue at all?
Steyn and Cooke
60
What did the court decide in S (Children) and Re W (Care Orders)?
S.3 is not a legislative drafting power so s.4 only
61
Who said protection of natural/civil rights is necessary for democracy?
Dworkin/laws
61
What case involved 'super-injunctions'?
Venables v News Groups
63
What case gave five main criteria for considering mandatory relevant issues?
R (Brown) v Work and Pensions Secretary
64
What case showed incitement to violence/religious hatred is not covered under Art.10 and merits no protection?
Garaudy v France
65
Ex p Brind
Broadcasting of IRA
66
what are jus cogens rules?
binding without a treaty
66
Name at least two departments which conducted pre-legislative scrutiny of the Communications Act 2003?
JSC on Human Rights (1st Report Session 2002-03); Dept of C, M and S Memo; Counsel's Advice to SoS on Compatibility with Art.10
67
Why did courts refuse to use s.3 in ex p Anderson?
Despite ECtHR saying HS could not set sentence, couldn't interpret legislation to give themselves this powr
68
In what case did Hoffman inject substantive conception of RoL?
Ex p Simms
68
What Articles of the French Declaration of Human Rights show historical context of document?
Art 17 (property) and Art.13 (equally apportioned tax)
69
Ridge v Baldwin
Dismissal in breach of natural justice
71
What did G do in response to Malone v UK?
Interception of Communications Act 1985
72
Ex p Simms
Interview; denial violated right of access to justice
72
Otto Preminger Institut v Austria
Film offending Catholics
74
Who said courts will regard ECtHR decisions as binding usually?
Bingham in Ullah v Special Immigration Adjudicator
75
Bellinger v Bellinger
Transgender marriage
77
Where does the original conception of judicial restraint come from?
Wednesbury
78
R v MacLoughlin
Refused to follow Vinter
79
Sunday Times v UK
Thalidomide
80
In what two courts did the judiciary show deference to the legislature in Animal Defenders?
High Court [2006] and HoL [2008]
81
What case shows a significant development in substantive review?
GCHQ --\> Prerogative
82
What case shows the height of the Ullah principle?
SoS for the HD v AF
82
Why, perhaps, does Art.10(2) require restrictions to be publicly promulgated and sufficiently clear?
RoL, autonomy idea (Dworkin; TRA Allen)
83
In what country did proportionality originate?
Germany
83
Belfast CC v Miss Behavin'
Sex shop - no process review at HRA
85
Who warned against requiring perfectly reasoned justifications from decision-makers?
Craig
86
Who recognised Art.11 might have had positive value as a constitutional right and in what case?
Denning, Hubbard v Pitt
88
GCHQ case
Trade unions, royal prerogative
89
Ex p Witham
LC set court fees; no legal aid for defamation
90
R (Crompton) v Wiltshire Primary Care
'well-established', Cranston J
91
Who said that we have 'residual liberties'?
Dicey ("The Law of the Constitution")
93
What is s.1 of HRA?
Rights are not part of domestic law
94
What case shows the high water mark of s.3 HRA?
R v A (No.2)
96
Under what principles of review did McDonald fail?
Both proportionality and WU
97
Name three breaches found with ECHR before HRA
Malone v UK; E p Brind; Ex p Smith
98
Why does the dicta in DCC v The Times not match up to subsequent cases?
First violations of HRA/ECHR were through common law
99
What are some of the justifable restrictions given i Art.10(2)?
National security, public safety and maintaining authority
100
Why was the decision of the minister in Padfield considered unreasonable?
Inappropriate input of political reasons.
102
What section of the Equality Act in particular shows relevant considerations?
S.149
103
Kennedy v Charity Comission
Inquiry, exempted disclosure under FOIA
104
Ex p Brind
Sinn Fein; radio
105
Name at least three categories of expression
(1) political, (2) civil or political interest, (3) artistic, (4) commercial, (5) press and journalistic freedom
106
What happens if a devolved institution legislates in violation of ECHR?
Taken outside of devolved competence and struck down
108
What article was engaged in ex p Smith?
Art.8
109
What did Bingham say of the Ullah principle?
'No more but certainly no less' than the ECtHR
110
What are the two Goodwin cases?
Goodwin --\> Transgender and Goodwin --\> Company information
110
what is the most radical approach to s.3?
R v A (No.2)
112
De Freitas v Permanent Secretary
Three questions of proportionality
113
Who argued that P and WU should coexist else the 'public terrain' would again be flattened, which is a 'step backwards'?
T Hickman
114
What section of HRA makes it clear P intended to preserve PS?
S.19 (statement of incompatibility)
115
what case first recognised a right of access to courts in common law?
Ex p Leech (No.2)
116
What case showed the CoA refusing to follow Vinter v UK and why?
R v MacLoughlin; examined domestic law and thought it enough with safeguards
117
Ex p Bugdaycay
Africa refugee
118
DPP v Jones
Stone henge druids
119
What case referred to Horncastle to show margin of appreciation and proportional?
Al-Khawaja v UK
121
Who termed the way irrationality creeps into HRA as 'leakage'?
Le Sueur "The Rise and Ruin of Unreasonableness"
122
Before the HRA, what was the effect of the ECHR?
No direct effect, references made and abide by rulings (Art. 46)
123
What were the three reasons for refusing s.4 in HoL ADI case?
MPs are sensitive to measures necessary for democracy, P knew possibly of violation but important and legislation draws general rules, so P decides where to draw the line
124
R v Horncastle
Hearsay evidence and safeguards
125
British Oxygen Co v Ministry of Technology
Investment grant
127
What judge thought A v UK was wrongly decided on control orders?
Hoffman
128
What does procedural fairness link with?
Art.6(1) ECHR
130
Ex p Armah
Reid, 'jurisdiction to go right... jurisdiction to go wrong'
131
What did the court decide in R v A (No.2)?
P could not have intended to deny D defence of consent
132
What are the two issues with s.3 HRA?
RoL (not clear or transparent law) and beyond ordinary rules of statutory interpretation
135
What article was engaged in Brind?
Art.10
136
Why was a s.4 declaration given in Bellinger v Bellinger?
Known to be against ECtHR (Goodwin v UK), but statute was clear and P researching how to give effect
137
What were the three questions of proportionality given in De Freitas?
Objective important enough, measures meet that objective and means are not more than necessary
138
What are two issues with common law and statute protecting civil liberties?
No specific legal protection means it can be breached, and parliamentary sovereignty (can enact any legislation)
139
Padfield v Minister of Agriculture
Centralised system
140
Ex p Doody
SoS refusing release after minimum term without revealing why
141
What case gave a presumption for oral hearings?
R (Smith and West) v Parole Board
142
Ex p Simms
Journalists
144
what case shows the difference between proportionality and wednesbury unreasonableness?
Ex p Smith
145
What legislation was challenged in Animal Defenders International v UK?
Communications Act 2003, s.321
146
Ex p Leech (No.2)
Solicitor correspondence
147
Handyside v UK
Obscene publication ban
149
Steel & Morris v UK
MacLibel case
151
What is s.2 HRA?
'Take into account' judgment of ECtHR
152
What were the two difference idea of unreasonableness in Wednesbury?
Umbrella sense (grounds of review) and substantive sense (individual ground)
153
R (Litvinenko) v SoS for the HD
Reasons insufficient
154
R (Bancoult) v SoS for F and CWA
Archipelago
155
What was the split in ADI in ECtHR?
9:8
156
Is there a type of process review for HRA?
NO
158
Goodwin v UK [1996]
stolen damaging information
160
What Article covers freedom of expression?
Article 10
160
What did the majority in ADI in ECtHR say?
Vgt decision was weak; legitimate objective; great deference to P and extensive pre-legislative consultation
162
R (Hasan) v Trade and Industry Secretary
If under FOIA, do not push for reasons
162
What is not covered under Art.10?
Incitement to violence/religious hatred/freedom of information
163
Ex p Simms on CL protection despite Sunday Times v UK etc
Protection very high - HS 'not authorised' to ban interviews
164
What is s.2 HRA unlike?
Binding nature of judgment in s.3 ECA
165
What were they trying to make the statute comply with in R v A (No.2)?
Art.6 subparagraph 3
166
How did Labour incorporate ECHR?
Word for word in HRA
167
In what case was it considered that there is an irreducible minimum for procedural fairness?
A and others v UK
168
What made Nottinghamshire CC justiciable in theory?
GCHQ; prerogative
169
R (Smith and West) v Parole Board
Predisposition in favour of oral hearing
170
What case shows proportionality vs anxious scrutiny?
Smith & Grady v UK
171
World Development Movement
Purgao Dam
171
Venables v News Groups
Murder at 11, injunction
172
BromleyLBC v GLC
Subsidise tube and bus
173
What two cases explicitly show judges recognising that courts will almost always follow ECtHR?
R (Chester) v SoS for J; Ullah v Special Immigration Adjudicator
174
What type of review was conducted in Bugdaycay?
Anxious scrutiny
176
Ex p Anderson
HS power to set life sentences
178
What category of expression does Handyside v UK fall under?
(3) Artistic
179
Why did the minority in ADI decide it was disproportionate?
Other measures available
180
What category of expression does Sunday Times v UK fall under?
Press and journalists freedom
181
What Article of the ECHR requires courts to abide by rulings involving the UK?
Article 46
182
What did fears of freedom of press curtailment due to clashes lead to?
S.12 HRA
183
Under what generation of international rights would you find jus cogens rules?
Group rights
185
Who said that JR is a 'supervisory, inherent jurisdiction directed on grounds of legality to the decisions and other public functions of public bodies'
Sir William Wade, "Administrative Law"
187
Hirst v UK
Prisoner's votes; G refuses to give effect to incompatibility
188
What is s.3 HRA?
'Insofar as it is possible to do so' interpret legislation to make it compatible
189
What case shows a devolved institution violating ECHR?
Recovery of Medial Costs for Asbestos Disease (Wales) Bill
190
Ex p Kebeline on HRA
Steyn: 'carefully and subtly drafted 1998 Act preserved the principle of PS'
191
What case said that CL is first , then HRA?
Osborn v Parole Board
192
What was an issue with the introduction of the ECHR?
Treaty is not binding unless incorporated due to dualist legal system
193
Ex p Pierson
Extending tariff
194
What Article did Recovery of Medial Costs for Asbestos Disease (Wales) Bill violate?
Art.1 Protocol 1
195
Ex p Institute of Dental Surgery
Inexpressible judgments (Sedley J)
196
Porter v Magill
Hope: 'fair-minded and informed observer... would conclude there is a real possibility of bias'
196
what two cases show the courts stating that s.3 is not a legislative provision?
Ex p Anderson and S (Children) & Re W (Care Orders)
197
Communications Act 2003, s.321
Blanket ban on political adverts and wide definition of 'political advertising' under subsection 2 excluded NGOs
198
what was the split in Bancoult between the judges?
3:2
199
Who argues strongly against a BoR for he believes it will make UK less democratic?
J Waldron, "A Rights-Based Critique of Constitutional Rights"
200
Ex p Smith
Homosexuals
201
Ex p Begbie
Sliding scale of 'Wednesbury unreasonableness' according to Laws LJ
202
What was said about defamation in Derbyshire CC v Times?
Public authority cannot sue for defamation
203
According to Anthony Matthews, what is the irreducible minimum for a fair hearing?
Free from bias and affected party has a right to be heard
205
Nottinghamshire CC v SoS for the Environment
Grant favours Conservatives
206
Vinter and others v UK
No real possibility of reviewing life sentence
207
What did Hale say in Belfast CC v Miss Behavin'?
No incentive to consider convention rights if not subject to process review, so said if they do then they may be more deferential
208
What did the judges refuse to do in Brind?
Consider proportionality before HRA
209
Ex p Smith
Homosexuals
210
R (Plantagenet Society) v SoS for Justice
Richard III
212
What was the overarching fourth element from Huang v SoS?
Fair balance between individual and community interests
213
Malone v MPC
Tab on post office; no tort of invasion of privacy, so not unlawful and no need for statutory power
214
What case is the leading one on AS for asylum immigration
WM (DRC) v SoS for the HD
215
Although GCHQ allows review of prerogative, what does Bancoult show?
Careful in international relations/national security
216
S.12 HRA
Ensures freedom of press is not disregarded for other rights; s.12(4) requires regard to Art.10 before injunction
217
Who argued that WU is still often used post-HRA?
Craig
219
Malone v UK
Unregulated phone tapping contrary to Art.8
220
What did the High Court say in ADI?
Exec and legislative had a better grasp of states need 'in such matters of social and political jugdment' than Strasbourg
221
Who criticised the WDM case?
J Sumption in "Judicial and Political Decision-Making: The Uncertain Boundary"
222
what did Steyn say in Ex p Leech?
RoL demands right of access to courts, requiring an ability to communicate with a lawyer
223
Why did the Ullah principle come about?
To avoid frustrating the main objective of HRA
224
Who argued for WU in McDonald?
Hale
225
What is s.4 HRA unlike?
S.2(4) ECA
226
In what case did the HoL refuse to apply art.10 and legislate 'via the back door'?
Brind
227
What was said of s.4 in R v A?
'Measure of last resort'
228
S (Children) and Re W (Care Orders)
Little information to parents
229
What Act gives mandatory relevant considerations?
Equality Act 2010
